Respondent Waidmann Realty Corp. appeals from an order of the Civil Court of the City of New York, New York County (Brenda S. Spears, J.), dated May 8, 2009, which, on reargument, granted respondent Allen's motion for summary judgment dismissing the holdover summary proceeding and directed a hearing on the issue of attorneys' fees.

Per Curiam.

Order (Brenda S. Spears, J.), dated May 8, 2009, reversed, with $10 costs, motion for summary judgment denied, petition reinstated, the court's directive that a hearing be held on the issue of attorneys' fees vacated and the matter remanded for further proceedings.

On this record, and in view of the uncertain regulatory status of the demised apartment premises, there are at least triable issues concerning respondent Allen's illusory tenancy defense. Even assuming the applicability of the illusory tenancy doctrine, respondent failed to establish conclusively that "the rent laws have been violated in a way that has permitted the prime tenant to rent the apartment for the purpose of subleasing for profit or otherwise depriv[ed] the subtenant of rights under the Rent Stabilization Law" (Primrose Mgt. Co. v Donahoe, 253 AD2d 404, 405 [1998]). In light of our conclusion that summary judgment was inappropriate, we do not reach any other issue.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 10, 2009