Elk 300 E 83 LLC v. Dowd

Petitioner-landlord appeals from an order of the Civil Court of the City of New York, New York County (Michael L. Weisberg, J.), dated December 23, 2015, which denied its motion for summary judgment of possession in a holdover summary proceeding.

Per Curiam.

Order (Michael L. Weisberg, J.), dated December 23, 2015, affirmed, with $10 costs.

We agree with Civil Court that this holdover proceeding is not susceptible to summary disposition, since petitioner failed to eliminate all triable issues of fact with respect to respondent Michael Dowd's family member succession defense (see New York City Rent and Eviction Regulations [9 NYCRR] § 2204.6[d][3][i]). On this record, triable issues are presented as to when tenant permanently vacated the apartment, particularly since tenant's attorney-in-fact made rent payments to petitioner and accepted Department of Social Services' shelter checks during the period in which tenant resided in a nursing facility.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.