| Cadman Towers, Inc. v Barry |
| 2015 NY Slip Op 51453(U) [49 Misc 3d 133(A)] |
| Decided on September 30, 2015 |
| Appellate Term, Second 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Eleanora Ofshtein, J., at trial), entered February 8, 2013. The final judgment, insofar as appealed from, awarded landlord possession as against undertenant Raymond M. Weinstein in a holdover summary proceeding.
ORDERED that the final judgment, insofar as appealed from, is affirmed, without costs.
Landlord, a Mitchell-Lama housing corporation, brought this holdover proceeding based upon Department of Housing Preservation and Development certificates of eviction which determined that tenants John Barry and John J. Holub were not eligible for continued occupancy because they had failed to reside in the apartment as their primary residence, and that Raymond M. Weinstein (occupant), Barry's adoptive father, lacks succession rights. Occupant appeals from so much of a final judgment after trial as awarded landlord possession as against him. The appeal from the final judgment brings up for review certain intermediate orders which, among other things, denied occupant's motions to dismiss and for leave to file a late jury demand.
Occupant's contention on appeal, that tenant John Barry was wrongfully denied an opportunity to cure his failure to reside in the apartment as his primary residence, is unavailing for the reason, among others, that occupant lacks standing to assert this claim on behalf of Barry. In any event, nonprimary residence is not curable (Arroyo v Donovan, 70 AD3d 517 [2010]; Matter of O'Quinn v New York City Dept. of Hous. Preserv. & Dev., 284 AD2d 211, 212 [2001]). Occupant's contention that he should have been granted leave to file a late jury demand is without merit for the reasons, among others, that the jury-waiver provision of the occupancy [*2]agreement was binding and enforceable against him, and, in any event, that occupant was not entitled to a trial at all, as he had failed to raise a triable issue of fact, since the certificates of eviction cannot be collaterally attacked (Bedford Gardens Co., LP v Jacobowitz, 29 AD3d 501 [2006]).
We have examined occupant's other contentions and find them to be equally without merit.
Accordingly, the final judgment, insofar as appealed from, is affirmed.
Pesce, P.J., Weston and Elliot, JJ., concur.