Landlords appeal from an order of the Civil Court, New York County (Jeffrey K. Oing, J.), dated December 1, 2004, which granted tenant's motion for summary judgment to the extent of dismissing the petition in this commercial holdover summary proceeding without prejudice to landlords' right to commence a proceeding in the Housing Part of the Civil Court.

PER CURIAM:

Order (Jeffrey K. Oing, J.), dated December 1, 2004, affirmed, with $10 costs.

The court properly dismissed this commercial holdover proceeding without prejudice to landlords' right to commence a new proceeding in the Housing Part of the Civil Court. Tenant's submissions below established that the lease agreement contained standard residential provisions, including a no-pet clause, a lead paint clause and a radon gas disclosure; DHCR registrations reflected a residential rental history; the certificate of occupancy designated the premises as an "apartment;" and the demised space was used jointly as a residence and home office (see e.g. U.B.O. Realty Corp. v Mollica, 257 AD2d 460 [1999]). Additionally, the termination notice served by landlord recognized the residential nature of the tenancy. The conclusory affirmation of landlords' attorney, who lacked personal knowledge of the facts, alleging that issues of fact existed with respect to the nature of tenant's occupancy, was without evidentiary value and insufficient to defeat tenant's motion for summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Inasmuch as landlords failed to raise an issue of fact as to the residential occupancy of the premises (cf. Marbru Associates v Kaplan, 148 AD2d 394 [1989]), the petition grounded upon allegations of commercial use was correctly dismissed.

This constitutes the decision and order of the
court.
I concurI concur [*2]
Decision Date: September 29, 2006