Alta Apartments v. Weisbond

10 Misc. 3d 40

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 7, 2005
• Status: Published

Opinions

OPINION OF THE COURT

Per Curiam.

Order entered November 14, 2003 modified to deny tenant’s cross motion for summary judgment, to reinstate the petition, and to remand the matter to Civil Court for further proceedings; as modified, order affirmed, with $10 costs to petitioner appellant.

This holdover proceeding, seeking possession of a rent-stabilized apartment on the ground that the tenant of record, Barton Weisbond, violated the lease by subletting or assigning the premises to his son, Spencer Weisbond, is not susceptible to summary dismissal. This thin record so far developed raises triable issues as to the nature and extent of Spencer’s occupancy in the apartment, matters peculiarly within respondents’ knowledge. We note that the record is devoid of any evidence tending to show that Spencer had extensive occupancy ties to the subject apartment (cf. 235 W. 71 St. LLC v Chechak, 16 AD3d 242 [2005]; Hudson St. Equities Group, Inc. v Escoffier, 2003 NY Slip Op 51213[U] [App Term, 1st Dept 2003]), and, indeed, that Spencer’s own affidavit appears to acknowledge that he never contemporaneously resided in the subject apartment with his father.

In reinstating the petition, we do not pass upon landlord’s application for discovery and use and occupancy, issues not reached below. Our disposition is without prejudice to the landlord’s right to renew its application for such relief in the Civil Court.