Landlord appeals from (1) an order of the Civil Court of the City of New York, New York County (Michelle D. Schreiber, J.), dated September 10, 2007, which denied its motion to strike tenant's first affirmative defense and for summary judgment on the holdover petition, and (2) that portion of an order (same court and Judge), dated October 22, 2007, which limited landlord's recovery of use and occupancy in a holdover summary proceeding.

Per Curiam.

Order (Michelle D. Schreiber, J.), dated September l0, 2007, reversed, with $10 costs, landlord's motion for summary judgment of possession granted, and tenants' first affirmative defense dismissed. Issuance of the warrant of eviction shall be stayed for 10 days after service of a copy of this order with notice of entry so that tenants may cure the breach of lease (see RPAPL 753[4]).

Order (Michelle D. Schreiber, J.), dated October 22, 2007, modified to the extent of remanding the matter to Civil Court for a determination of the amount of use and occupancy due landlord; as modified, order affirmed, without costs.

In this holdover summary proceeding based upon tenants' alleged violation of the occupancy limits of the demised stabilized hotel room, landlord made a prima facie showing of entitlement to judgment as a matter of law. The record evidence, including a copy of an overcrowding violation order issued by the New York City Fire Department, conclusively established that tenants violated a substantial obligation of their tenancy by having at least three adults occupying this 168 square foot single room occupancy unit (see Rent Stabilization Code [9 NYCRR] 2524.3[c]; Housing Maintenance Code [Administrative Code of the City of New York] [*2]§27-2705[a][1]). The copy of the violation order submitted by landlord should have been considered since the official who inspected the premises and issued the original violation notice attested to the fact that the original notice could not be located and that the copy was true and authentic (see CPLR 4518[c], 4539). In opposition, tenants neither countered landlord's evidentiary showing nor raised a triable issue as to her lone "reasonable accommodation defense" under fair housing and anti-discrimination laws (see 42 USC § 3601 et seq.).

In light of our award of a final judgment on landlord's possessory cause of action, landlord is entitled to use and occupancy for the entire holdover period (see RPAPL 749[3]). We thus remand the matter to Civil Court to determine the amount of use and occupancy due landlord, from the August 28, 2006 effective date of the underlying notice of termination.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 07, 2008