Tenant appeals from a final judgment of the Civil Court of the City of New York, Bronx County (Robert R. Reed, J.), entered April 6, 2011, after a nonjury trial, which awarded landlord possession and a recovery of use and occupancy in a holdover summary proceeding.

Per Curiam.

Final judgment (Robert R. Reed, J.), entered April 6, 2011, reversed, without costs, and matter remanded for a new trial.

This "commercial" holdover proceeding, brought upon the alleged termination of tenant's purported month-to-month garage lease agreement, seeks to recover possession of a garage space situated in the building premises in which tenant resides. While the trial evidence, including several provisions of the garage lease itself, showed that there is at least some linkage between the rental of the garage space and tenant's residential apartment, the record as a whole sheds little light on the extent of that connection. In this regard, the record is bereft of evidence bearing on such issues as the rent regulatory status of tenant's apartment and the nature and chronology of the building owner's provision of garage service, absent which an informed determination as to whether the landlord's garage facility constituted an "ancillary service" under rent stabilization (see Rent Stabilization Code [9 NYCRR]
§ 2520.6[r][3]) is not possible. Resolution of the statutory coverage issue necessarily affects the jurisdiction of the court to grant petitioner-landlord the possessory relief demanded (see Rent Stabilization Code [9 NYCRR § 2522.4[e]; see e.g. Matter of 110-15 71st Rd. Assoc., LLC v New York State Div. of Hous. & Community Renewal, 54 AD3d 679 [2008], lv denied 12 NY3d 712 [2009]), as well as tenant's retaliatory eviction defense (see Real Property Law § 223-b), a defense which, although found by the trial court to be of colorable factual merit, was ultimately rejected based on the putative commercial nature of the garage rental. Given the incomplete state of the record, and the trial court's own concerns expressed on the record as to whether the garage [*2]rental involved residential or "commercial space," fairness dictates that the matter be tried anew.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 11, 2013