Tenant appeals from an order of the Civil Court, New York County, entered July 18, 2003 (Geoffrey D. Wright, J.) which denied its motion for summary judgment and granted landlord's cross motion for summary judgment in a holdover summary proceeding.

PER CURIAM:

Order entered July 18, 2003 (Geoffrey D. Wright, J.) modified to deny landlord's cross motion for summary judgment on the holdover petition; as modified, order affirmed, without costs.

This holdover eviction proceeding, seeking possession of commercial basement space, is not ripe for summary disposition. The record so far developed raises triable issues as to [*2]the nature and duration of the tenant's leasehold interest, with the landlord's allegation that the tenancy is governed by an oral month-to-month lease pitted against the tenant's claim that a long-term written lease agreement between it and the predecessor owner is in effect. Although landlord points to several factors that ultimately may serve to substantiate his contention that the "sweetheart" lease relied upon by tenant is a sham, resolution of the credibility issues presented by the parties' conflicting submissions must await further exploration at trial (see BME Three Towers v 225 East Realty Corp., 3 AD3d 444 [2004]). Nor did landlord demonstrate entitlement to summary judgment on the basis that the written lease was unrecorded, a matter initially raised not by the landlord, but by the motion court on its own initiative. The record, particularly landlord's correspondence of the same date as his purchase of the building premises requesting tenant to forward "the lease copies," presents unresolved issues as to whether landlord had notice of the written lease sufficient to vitiate his status as a bona fide purchaser entitled to the protection of the Recording Act (Real Properly Law § 290 et seq.; cf. Fekishazy v Thomson, 204 AD2d 959, 962 [1994]), lv denied 84 NY2d 812 [1995]).

This constitutes the decision and order of the court.
Decision Date: December 08, 2004