Holm v. Bayis Realty Corp.

Order, Supreme Court, New York County (Sheila AbdusSalaam, J.), entered on or about December 4, 2003, which denied plaintiffs motion for summary judgment and granted defendant Bayis Realty’s cross motion for summary judgment dismissing the complaint, unanimously modified, on the law, said defendant’s cross motion denied and the complaint reinstated, and otherwise affirmed, without costs.

Plaintiff terminated a real estate agreement, involving his purchase of a residential multiple dwelling, on the ground that building records indicated an open “rent impairing” violation dating back to 1990, namely, a defective fire escape. The agreement permitted the purchaser to terminate the contract for such a violation. Defendant seller, acknowledging that the records of the Department of Housing Preservation and Development (HPD) showed an “open” rent-impairing “C” violation on the premises, contended nonetheless that those records also indicated correction of the violation certified in 1990.

Issues of fact remain with respect to the continued existence of this violation. Defendant seller concedes that it never paid the $300 fee to have the violation removed from HPD’s records, and that it failed to submit an actual certificate of compliance to establish that the violation was corrected. Inasmuch as the parties disputed the meaning of the heading “Owner Certification Dates” in relevant HPD records, as well as the meaning of subsequent HPD inspection findings in connection with the subject premises, the motion court impermissibly engaged in issue determination rather than issue finding when it adopted Bayis Realty’s arguments. Concur—Tom, J.P., Mazzarelli, Marlow, Nardelli and Catterson, JJ.