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423 Madison Ave., LLC v Blum
2005 NY Slip Op 51551(U) [9 Misc 3d 129(A)]
Decided on September 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 28, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. WILLIAM P. McCOOE, J.P.,
HON. PHYLLIS GANGEL-JACOB,
HON. MARTIN SCHOENFELD, Justices.


423 Madison Avenue, LLC,NY County Clerk's Petitioner-Landlord-Respondent, #570044/05

against

Michael Blum, 05-147 Respondent-Tenant-Appellant


Tenant appeals from an order of the Civil Court, New York County, entered December 21, 2004 (Jean T. Schneider, J.) which denied his motion for summary judgment, without prejudice to renewal upon completion of discovery, and granted a cross motion by landlord for leave to conduct discovery in a nonprimary residence holdover proceeding.


PER CURIAM

Order entered December 21, 2004 (Jean T. Schneider, J.), affirmed, with $10 costs.

We agree that the nonprimary residence holdover proceeding is not susceptible to summary dismissal at this juncture. The evidence contained in the pre-discovery record before us, including the tenant's acknowledgment that he regularly travels to California and the sworn allegations of landlord's building personnel that tenant is rarely "encountered" in the seven-unit Madison Avenue building premises, was insufficient to establish as a matter of law that tenant primarily resides in the subject apartment (see West 15th St. Assocs. v Sassonian, 156 AD2d 187 [1989]; Tulip Apts., Inc. v Sullivan, 8 Misc 3d 126[A], 2005 NY Slip Op 50900[U] [App Term, 1st Dept]).

This constitutes the decision and order of the court.
Decision Date: September 28, 2005