Petitioner appeals from (1) an order of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), dated December 1, 2012, which granted respondent Lundgren's motion to restore the case to the calendar, and (2) an order (same court and Judge), dated December 1, 2012, which denied petitioner's cross motion for summary judgment and for discovery sanctions.

Per Curiam.

Order (Jean T. Schneider, J.), dated December 1, 2012, modified to grant petitioner's cross motion for summary judgment on its cause of action for possession; as modified, order affirmed, with $10 costs. Issuance of the warrant shall be stayed for 30 days from the service of a copy of this order with notice of entry. Appeal from order granting tenant's motion to restore the case to the calendar (Jean T. Schneider, J.), dated December 1, 2012, dismissed, without costs, as academic.

Respondent Lundgren failed to raise an issue of fact with respect to her proffered succession defense. The record evidence, including respondent's own deposition testimony, conclusively established that although the record tenant (Chin) took up primary residence elsewhere in about 1979, he did not permanently vacate the apartment at any time prior to the commencement of this holdover eviction proceeding in May 2011. The record shows that tenant tendered rent for several years after he departed, hired an attorney to defend a nonpayment [*2]proceeding brought against him, continues to maintain some personal belongings in the apartment where he, according to respondent, "comes and goes" and, perhaps most significantly, completed a DHCR form in April 2011, indicating that he is the record tenant and that respondent was residing with him in the apartment as a "family member." Inasmuch as the record does not permit a finding that tenant permanently vacated the apartment prior to May 2011, and there being no showing that respondent "resided with" the tenant in the subject apartment during the one-year period immediately preceding tenant's permanent vacatur, if any (see New York City Rent and Eviction Regulations [9 NYCRR] § 2204.6[d][1]), respondent's succession claim must fail (see Third Lenox Terrace Assocs. v Edwards, 91 AD3d 532 [2012]; 72A Realty Assocs. v Kutno, 5 Misc 3d 100 [2007]).

Nor has respondent raised a triable issue as to whether petitioner recognized her as a tenant in her own right or waived the right to contest her continued occupancy (see Sullivan v Brevard Assocs., 66 NY2d 489, 495 [1985]; 117 W. 57th St. Realty Corp. v Estate of Hultgren, 205 AD2d 363 [1994], revg NYLJ, Sept. 14, 1993, at 21, col 1, for reasons stated in dissent of McCooe, J. at Appellate Term).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 13, 2013