184 W. 10th Corp. v Westcott (2005 NYSlipOp 51188(U))

184 W. 10th Corp. v Westcott

2005 NYSlipOp 51188(U)

Decided on July 26, 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This opinion is uncorrected and will not be published in the printed Official Reports.

184 West 10th Corp.,NY County Clerk's #570896/03 Petitioner-Landlord-Appellant, —

against

Nancy Westcott, a/k/a NANCY WESTCOTT POCOCK, Respondent-Tenant-Respondent, ROGER POCOCK, "JOHN DOE" and/or "JANE DOE", Respondent-Undertenant. ——————————————————-x

Landlord appeals from an order of the Civil Court, New York County, entered March 21, 2003 (Michelle D. Schreiber, J.) which granted tenant's motion for summary judgment dismissing the petition and for attorneys' fees in a holdover summary proceeding, and from an order of the same court and Judge entered May 29, 2003 which, inter alia, denied landlord's cross motion for renewal of the aforesaid March 21, 2003 order.

Order entered March 21, 2003 (Michelle D. Schreiber, J.) reversed, with $10 costs, tenant's motion for summary judgment dismissing the petition denied, the award of attorneys' fees to tenant vacated, and the holdover petition reinstated. Appeal from order entered [*2]May 29, 2003 (Michelle D. Schreiber, J.) dismissed, without costs, as academic.

This residential holdover proceeding based upon alternative theories of illegal subletting and improper business use is not susceptible to summary dismissal. Material questions of fact exist, including whether the tenant used the rent stabilized apartment exclusively or primarily for professional or commercial purposes beyond the limited business purpose contemplated by the lease rider (paragraph 40A), constituting a violation of a substantial obligation of the tenancy (see Matter of Park W. Vil. v Lewis, 62 NY2d 431 [1984]; Ansonia Assocs. v Bozza, 180 Misc 2d 702 [1999]). A triable issue is also raised as to whether tenant was in violation of Real Property Law § 226-b by unlawfully subletting this "railroad"-type, one bedroom apartment to a business assistant without landlord's prior written consent, while primarily residing in a Connecticut residence that she and her husband jointly own. Resolution of credibility issues presented by the parties' conflicting submissions must await trial. Since the evidence failed to establish as a matter of law that tenant is entitled to continued protection of the rent stabilization laws, the drastic remedy of summary judgment was unwarranted.

This constitutes the decision and order of the court.
Decision Date: July 26, 2005