Uptown Realty Group, L.P. v Buffaloe (2005 NY Slip Op 50164(U))

Uptown Realty Group, L.P. v Buffaloe

2005 NY Slip Op 50164(U)

Decided on February 16, 2005

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.

UPTOWN REALTY GROUP, L.P., Petitioner-Landlord-Appellant,

against

ADRIENNE BUFFALOE 31 East 31st Street, Apt. 4D New York, NY 10016, Respondent-Tenant-Respondent, -and- "JOHN DOE" and/or "JANE DOE", Respondents-Undertenants.

Landlord appeals from an order of the Civil Court, New York County, entered August 5, 2004 (Maria Milin, J.) which denied its motion for leave to conduct disclosure and for interim use and occupancy and granted a cross motion by tenant for summary judgment dismissing the petition in a nonprimary residence holdover proceeding.

Order entered August 5, 2004 (Maria Milin, J.) modified by denying tenant's cross motion for summary judgment and granting that branch of landlord's motion which sought leave [*2]to conduct disclosure; as modified, order affirmed, with $10 costs to petitioner-landlord.

The holdover proceeding, based upon allegations of nonprimary residence, is not susceptible to summary dismissal. The evidence contained in the pre-discovery record now before us raises material questions of fact as to the nature and extent of the tenant's use of the subject East 31st Street apartment — which tenant claims "generally" serves as her weekday home — and her husband's Queens Village residence where tenant, at a minimum, spends her weekends. Neither the documentary evidence relied upon by tenant nor her conclusory allegation that she and her husband "maintain a substantial degree of separateness" was sufficient to carry tenant's burden to demonstrate a prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The conflict as to whether the subject apartment is actually being utilized as tenant's primary residence should be resolved following disclosure, which we direct, and a plenary trial on the merits (see West 15th St. Assocs. v Sassoonian, 156 AD2d 137 [1989]; Wenham Realty Corp. v Miller, 1 Misc 3d 128[A][2003]).

In reinstating the petition, we do not pass upon the landlord's application for payment of interim use and occupation, an issue not reached below. Our disposition is without prejudice to the landlord's right to renew its application for such relief in the Civil Court.

This constitutes the decision and order of the court.
Decision Date: February 16, 2005