Anoroc Realty, Inc. v Rasmussen (2004 NY Slip Op 50776(U))

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Anoroc Realty, Inc. v Rasmussen

2004 NY Slip Op 50776(U)

Decided on July 7, 2004

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 7, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:PESCE, P.J., GOLIA and RIOS, JJ.
NO. 2003-1045 K C

ANOROC REALTY, INC., Respondent,

against

TRIFFIN RASMUSSEN, Tenant-Appellant, -and- YANTS RASMUSSEN, Undertenant-Appellant, -and- MARK VALENTI and "JOHN DOE, Undertenants.

Appeal by tenant Triffin Rasmussen and undertenant Yants Rasmussen from so much of an order of the Civil Court, Kings County (T. Fitzpatrick, J.), entered June 2, 2003, as denied their motion for summary judgment on their first and third affirmative defenses.

Order unanimously modified by providing that the petition is dismissed; as so modified, affirmed without costs.

In this holdover proceeding to recover possession of a premises subject to the Loft Law (Multiple Dwelling Law art 7-C), the court, after denying appellants' motion for summary judgment on their first, second and third affirmative defenses, granted appellants' summary [*2]judgment motion on appellants' fourth affirmative defense, upon appellants' unrebutted proof that the named undertenant, Mark Valenti, is not a sublessee but a mere roommate. Inasmuch as landlord premised its termination notice and petition upon a claim of an illegal sublet to Mark Valenti, said order effectively dismissed the sole ground on which the proceeding was based. Accordingly, upon a search of the record, we modify the order by dismissing the petition.
Decision Date: July 07, 2004