Respondent Newsome appeals from an order of the Civil Court, New York County, entered on or about March 23, 2004 (Inez Hoyos, J.) which denied his motion pursuant to CPLR 3211(a)(1) to dismiss the holdover summary proceeding.

PER CURIAM:

Order entered on or about March 23, 2004 (Inez Hoyos, J.) affirmed, with $10 costs.

Respondent Newsome's preanswer motion to dismiss the holdover petition was properly denied since the documentary evidence relied upon — prior statements in the petition underlying a 1992 eviction proceeding brought by petitioner to recover possession of the subject [*2]apartment premises — "do[es] not meet the CPLR 3211(a)(1) requirement of conclusively establishing [the] defense as a matter of law" (IMO Indus. v Anderson Kill & Olick, 267 AD2d 10, 11 [1999]). Contrary to respondent Newsome's contention, the fact that he and other members of the record tenant's family were identified in the caption of the earlier holdover petition as "Respondent(s)/Tenant(s)/Occupant(s)" does not conclusively controvert petitioner's present claim that Newsome is a mere subtenant or licensee, particularly given the textual language of the earlier petition indicating that the named respondents were "former tenant(s), tenant(s), licensees, subtenants, or of a relationship unknown to petitioner ...". Also sufficient to defeat the dismissal motion was petitioner's offer of proof in the form of a personal affidavit and attached documentation which raised factual issues concerning the nature and extent of respondent Newsome's presence at and usage of the apartment premises, factors critical to respondent's claim of succession rights.

This constitutes the decision and order of the court.
Decision Date: June 30, 2005