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206 W. 104th St. LLC v Zapata
2012 NY Slip Op 51845(U) [37 Misc 3d 126(A)]
Decided on September 26, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 26, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Torres, J.P., Schoenfeld, Shulman, JJ
570039/12.

206 West 104th Street LLC, Petitioner-Landlord-Appellant,

against

Miguel Zapata and Edwin Caceras, Respondents-Tenants, -and- Jeff Zapata, "John Doe" and "Jane Doe," Respondents-Undertenants-Respondents.


Petitioner appeals from an order of the Civil Court of the City of New York, New York County (Sheldon J. Halprin, J.), dated May 6, 2010, which granted the cross motion of respondent Jeff Zapata to dismiss the holdover petition as abandoned and denied petitioner's motion to restore the case to the calendar.


Per Curiam.

Order (Sheldon J. Halprin, J.), dated May 6, 2010, reversed, with $10 costs, cross motion to dismiss denied, petition reinstated, and landlord's motion to restore the proceeding to the calendar granted.

Petitioner's motion to restore the holdover proceeding to the calendar should have been granted, in view of the underlying merit of its nonprimary residence claim against the defaulting tenant, the lack of prejudice to respondent Zapata, whose discovery defaults appear to have substantially contributed to the delay, and the fact that the case was marked off on consent to allow specified discovery in connection with respondent's succession defense (see Alleyne v Penske Truck Leasing Corp., 12 AD3d 174 [2004]; cf. Kaufman v Bauer, 36 AD3d 481 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 26, 2012