| Argyle Apts., LLC v Harris |
| 2017 NY Slip Op 50553(U) [55 Misc 3d 139(A)] |
| Decided on April 12, 2017 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
The Legal Aid Society, (Rachel Ganani, Esq.), for appellant.
Gutman, Mintz, Baker & Sonnenfeldt, P.C., (Arianna Gonzalez-Abreu, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Gary Franklin Marton, J.), dated September 22, 2015. The order, insofar as appealed from, denied tenant's motion for summary judgment in a holdover summary proceeding.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and tenant's motion for summary judgment dismissing the petition is granted.
Landlord commenced this holdover proceeding against Leroy Harris in January 2015, alleging that he had sublet the subject premises without landlord's prior written consent in violation of his lease. The petition and predicate notices name "Cleomene Garraud" (Garraud-Harris) and "John and/or Jane Doe" (subsequently identified as Shanille Flowers) as the sublessees and allege that tenant had vacated and is currently residing in a nursing home. In support of a motion for summary judgment, tenant submitted his marriage certificate to Garraud-Harris and a copy of a 2014 renewal lease sent by landlord to, and executed by, both tenant and Garraud-Harris. In opposition, landlord's employee submitted an affidavit alleging that Garraud-Harris has not lived in the subject premises for many years, or that she had come back to the premises only after her husband went to the nursing home.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by presenting evidence, in admissible form, demonstrating the absence of any material issues of fact (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Landlord is "bound by the notice served" (Singh v Ramirez, 20 Misc 3d 142[A], 2008 NY Slip Op 51680[U], *2 [App Term, 2d Dept, 2d & 11th Jud Dists 2008] [citation and internal quotation marks omitted]), which is not subject to amendment (see Chinatown Apts., Inc. v Chu Cho Lam, 51 NY2d 786, 788 [1980]). As Garraud-Harris is a tenant of record pursuant to the 2014 lease, the predicate notices are defective and cannot support this proceeding (see 542 Holding Corp. v Prince Fashion, Inc., 46 AD3d 309 [2007]).
Accordingly, the order, insofar as appealed from, is reversed and tenant's motion for summary judgment dismissing the petition is granted.
Solomon, J.P., Pesce and Elliot, JJ., concur.
Paul Kenny