AFF-WHGA MN-11E, LP v. Wiggins

2025 NY Slip Op 51593(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 10, 2025
• Docket: 570847/25
• Status: Unpublished

Opinion

AFF-WHGA MN-11E, LP v Wiggins (2025 NY Slip Op 51593(U)) [*1]

AFF-WHGA MN-11E, LP v Wiggins

2025 NY Slip Op 51593(U)

Decided on October 10, 2025

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 10, 2025

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Tisch, J.P., Perez, Alpert, JJ.
570847/25

AFF-WHGA MN-11E, LP, Petitioner-Appellant,

against

Anthony Wiggins, Malcom Harrys, "John Doe" and "Jane Doe," Respondents-Respondents.

Petitioner appeals from an order of the Civil Court of the City of New York, New York County (Joan Rubel, J.), entered on or about August 26, 2024, after inquest, which dismissed the petition in a holdover summary proceeding.

Per Curiam.

Order (Joan Rubel, J.), entered on or about August 26, 2024, reversed, without costs, petition reinstated, and matter remanded for a new inquest.

The inquest court should not have dismissed the licensee-holdover petition on the ground that the nonappearing respondent, Anthony Wiggins, may have a claim for succession following the vacatur of his mother, the tenant of record. Having defaulted, respondent is deemed to have admitted all traversable allegations in the petition (see Carlyle, LLC v Quik Park Beekman II, LLC, 59 Misc 3d 35, 2018 NY Slip Op 28071 [App Term, 1st Dept 2018]), i.e., that his license to occupy the premises expired upon the tenant's vacatur. Petitioner was not required to affirmatively disprove a potential succession claim in its holdover petition. Nor was petitioner required to disprove an unpleaded defense at the inquest. A claim of succession is an affirmative defense (see generally Cenpark Realty LLC v Gurin, 118 AD3d 553, 553 [2014]), and the burden of proof rests on the party asserting the defense (see Rent Stabilization Code [9 NYCRR] § 2523.5 [e]; South Pierre Assoc. v Mankovitz, 17 Misc 3d 53, 54, 2007 NY Slip Op 27415 [App Term, 1st Dept 2007]; see also 53-63 Partners LP v Wright, 65 Misc 3d 142[A], 2019 NY Slip Op 51717[U] [App Term, 1st Dept 2019]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 10, 2025