Villafane v. Industrial Construction Management, Ltd.

137 A.D.3d 526, 25 N.Y.S.3d 886

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 2016
• Docket: 481 300330/09
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered March 27, 2015, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Defendant failed to establish prima facie that it is an out-of-possession landlord with no right of reentry or maintenance (see Vasquez v RVA Garage, 238 AD2d 407 [2d Dept 1997]). In addition to testimony as to the terms of an oral lease agreement with the commercial tenant, defendant offered only a carefully tailored affidavit by the tenant’s principal, who is also the mother of defendant’s principal. This evidence is not sufficient to eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Concur—Tom, J.R, Andrias, Saxe and Kapnick, JJ.