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14 Morningside Ave. HDFC v Smalls
2015 NY Slip Op 50949(U) [48 Misc 3d 128(A)]
Decided on June 25, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 25, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570062/15

14 Morningside Avenue HDFC, Petitioner-Landlord-Appellant, -

against

Albert Smalls and Lillie Smalls, Respondents-Tenants-Respondents, -and- Carl Smalls, Valerie Moody, "John Doe" and "Jane Doe," Respondents-Undertenants-Respondents.


Landlord appeals from 1) an order of the Civil Court of the City of New York, New York County (Arlene H. Hahn, J.), dated September 5, 2014, which granted the motion of tenants and undertenants for summary judgment dismissing the petition in a holdover summary proceeding, and 2) an order (same court and judge), dated December 9, 2014, which granted tenants' motion for attorneys' fees and set the matter down for a hearing to determine the reasonable value of such fees.

Per curiam.

Orders (Arlene H. Hahn, J.), dated September 5, 2014, and December 9, 2014, reversed, with one bill of $10 costs, tenants' and undertenants' motions for summary judgment and attorneys' fees are denied, and the petition reinstated.

This holdover summary proceeding is not susceptible to summary dismissal. The record raises but does not resolve several triable issues, including whether tenants complied with the HDFC proprietary lease requirements when they sought to assign their lease and shares to their son, respondent-undertenant Karl Smalls, whether Karl was a financially responsible individual, and, if so, whether the HDFC unreasonably withheld consent to the assignment (see 352-354 W. 48 St. Hous. Dev. Fund Corp. v Rodriguez, 41 Misc 3d 138[A], 2013 NY Slip Op 51921[U] [App Term, 1st Dept 2013]).


In view of the unresolved factual issues, tenants' entitlement to attorneys' fees as the prevailing party in this litigation was premature.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concurI concur I concur


Decision Date: June 25, 2015