Respondent Barry Hartheimer, as limited by his brief, appeals from that portion of an order of the Civil Court of the City of New York, New York County (John H. Stanley, J.), dated August 24, 2012, which denied his motion for summary judgment dismissing the petition in a holdover summary proceeding.

Per Curiam.

Order (John H. Stanley, J.), dated August 24, 2012, affirmed, with $10 costs.

Summary judgment dismissal of the holdover petition is unwarranted. Triable issues of fact exist as to whether appellant, the son of the now deceased rent controlled tenant, primarily resided with the tenant for at least two years immediately prior to tenant's death, so as to entitle appellant to succeed to his mother's tenancy in the subject West 96th Street apartment (see New York City Rent and Eviction Regulations [9 NYCRR] § 2204.6[d][1]). Given appellant's acknowledged occupancy interest in an apartment situated in a luxury building on Central Park South and his failure to produce all relevant tax returns despite due demand, the conflict as to where appellant primarily resided during the relevant time period cannot be resolved on this cold record, but must await a plenary trial (see West 15th St. Assoc. v Sassoonian, 156 AD2d 137 [1989]; Kamvan Co. v Rammel, 132 Misc 2d 909 [1986]).

Appellant's present contention that issuance of a certificate of eviction by DHCR was a sine qua non of petitioner's possessory claim, being nonjurisdictional, was waived since not timely raised (see 433 W. Assoc. v Murdock, 276 AD2d 360, 361 [2000]) and, in any event, is lacking in merit (see Cox v J.D. Realty Assoc., 217 AD2d 179, 181 [1995]; Bromer v Rosensweig, 166 Misc 2d 201 [1995]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
I concur






Regina Metropolitan Co., LLC,NY County Clerk's No.
Petitioner-Landlord-Respondent,570980/10
-against-
Barry Hartheimer, Calendar No. 13-159Respondent-Appellant, -and-
Julian Hartheimer, "John Doe"
& "Jane Doe,"
Respondents-Undertenants.
Respondent Barry Hartheimer, as limited by his brief, appeals from that portion of an order of the Civil Court of the City of New York, New York County (John H. Stanley, J.), dated August 24, 2012, which denied his motion for summary judgment dismissing the petition in a holdover summary proceeding.
Per Curiam.
Order (John H. Stanley, J.), dated August 24, 2012, affirmed, with $10 costs.
Summary judgment dismissal of the holdover petition is unwarranted. Triable issues of fact exist as to whether appellant, the son of the now deceased rent controlled tenant, primarily resided with the tenant for at least two years immediately prior to tenant's death, so as to entitle appellant to succeed to his mother's tenancy in the subject West 96th Street apartment (see New York City Rent and Eviction Regulations [9 NYCRR] § 2204.6[d][1]). Given appellant's acknowledged occupancy interest in an apartment situated in a luxury building on Central Park South and his failure to produce all relevant tax returns despite due demand, the conflict as to where appellant primarily resided during the relevant time period cannot be resolved on this cold record, but must await a plenary trial (see West 15th St. Assoc. v Sassoonian, 156 AD2d 137 [1989]; Kamvan Co. v Rammel, 132 Misc 2d 909 [1986]).
Appellant's present contention that issuance of a certificate of eviction by DHCR was a sine qua non of petitioner's possessory claim, being nonjurisdictional, was waived since not timely raised (see 433 W. Assoc. v Murdock, 276 AD2d 360, 361 [2000]) and, in any event, is lacking in merit (see Cox v J.D. Realty Assoc., 217 AD2d 179, 181 [1995]; Bromer v Rosensweig, 166 Misc 2d 201 [1995]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 02, 2013

JULY 2, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
								June 2013 Term
Hunter, Jr., J.P., Torres, Shulman, JJ.

Decision Date: July 02, 2013