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116 Madison St., LLC v Seid
2008 NY Slip Op 52336(U) [21 Misc 3d 139(A)]
Decided on November 21, 2008
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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2008
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Davis, Heitler, JJ
570161/08.

116 Madison Street, LLC, Petitioner-Landlord-Respondent,

against

Philip Seid, Respondent-Tenant-Appellant, -and- Henry Seid d/b/a Chinatown Ice Cream Factory, Respondent-Tenant, -and- Lychee Ice Cream Factory, Inc., Respondent-Undertenant-Appellant.


Respondents Philip Seid and Lychee Ice Cream Factory, Inc. appeal from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), dated August 3, 2007, which, upon renewal, adhered to its prior order granting landlord's motion for summary judgment in a holdover summary proceeding.


Per Curiam.

Order (Debra Rose Samuels, J.), dated August 3, 2007, modified to deny landlord's motion for summary judgment on the holdover petition and, as modified, affirmed, with $10 costs payable to appellant Philip Seid.

This holdover summary proceeding, based upon an alleged illegal assignment or subletting of the demised commercial premises, is not susceptible to summary disposition. The record raises material issues of fact, including whether petitioner landlord knew or should have known of the predecessor landlord's alleged acceptance of a new corporation as an additional tenant, and whether petitioner waived the alleged lease violation by its pre-petition retention of rent checks.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 21, 2008