Appeal from an order of the City Court of Yonkers, Westchester County (Robert C. Cerrato, J.), entered August 21, 2008. The order denied occupant's motion, in effect, for leave to renew a prior motion by landlord for summary judgment, and, upon renewal, for denial of the prior motion and vacatur of the final judgment entered pursuant to the prior order.

ORDERED that the order is reversed without costs, occupant's motion for leave to renew landlord's prior motion for summary judgment is granted, landlord's motion for summary judgment is denied, the final judgment entered pursuant to the prior order is vacated and the matter is remitted to the City Court for all further proceedings.

In this licensee summary proceeding (RPAPL 713 [7]), landlord contends that occupant is a licensee of the deceased tenant of record and that occupant's right to occupy the rent-controlled premises terminated upon the tenant's death. Occupant contends that the tenant of record is his mother and that he has succession rights to the subject apartment (see Emergency Tenant Protection Regulations [9 NYCRR] § 2503.5 [d]). A motion by landlord for summary judgment was granted with leave to occupant to renew the motion upon, inter alia, the submission of witnesses' affidavits. Thereafter, occupant moved, in effect, for leave to renew the prior motion, and upon renewal, for denial of landlord's motion for summary judgment and vacatur of the final judgment entered pursuant thereto. The motion was denied, and the instant appeal by occupant ensued.

While occupant, on his renewal motion, "failed to submit the customary indicia of continuous residence at the subject premises during the relevant time period" (City Realty Assoc. v Westreich, 3 Misc 3d 127[A], 2004 NY Slip Op 50344[U] [App Term, 2d & 11th Jud Dists 2004]), he did submit affidavits from three witnesses attesting to the fact that he co-occupied the apartment with his mother during the relevant period. Summary judgment is a drastic remedy, [*2]and should not be granted when there is any doubt as to the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Contrary to the City Court's ruling, testimony showing a substantial nexus to the subject apartment may preponderate over conflicting documentary evidence in determining primary residence (see 310 E. 23rd LLC v Colvin, 41 AD3d 149 [2007]).

Accordingly, occupant's motion for leave to renew landlord's prior motion for summary judgment should have been granted, landlord's motion for summary judgment denied and the final judgment vacated.

Nicolai, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: October 20, 2009