Tenant appeals from (1) an order of the Civil Court of the City of New York, New York County (Arthur F. Engoron, J.), dated May 19, 2008, which denied his motion for summary judgment dismissing the petition and, upon a search of the record, granted "summary judgment" to landlord to the extent of determining that tenant's "leasehold is commercial, not residential," and (2) a final judgment (same court and Judge), entered September 10, 2008, after a hearing, which awarded possession to landlord in a commercial holdover summary proceeding.

Per Curiam.
Final judgment (Arthur F. Engoron, J.), entered September 10, 2008, reversed, with $30 costs, final judgment vacated and the petition dismissed, without prejudice. Appeal from order (Arthur F. Engoron, J.), dated May 19, 2008, dismissed, without costs, as subsumed in the appeal from the final judgment.

Despite the commercial nature of the parties' written lease agreement, the hearing evidence compels the conclusion that petitioner landlord knew or acquiesced in the tenant's residential use of the demised cellar premises (see U.B.O. Realty Corp. v Mollica, 257 AD2d 460 [1999]). We note that landlord produced no witness with personal knowledge to contest the duration and character of tenant's residential occupancy, and did not deny that the premises were already equipped for residential use at the commencement of the leasehold. Inasmuch as the business holdover petition incorrectly alleged that the premises were rented for commercial use only, the proceeding must be dismissed, albeit without prejudice to recommencement upon a proper residential petition (see 22 NYCRR 208.42[a]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 06, 2009