Opinion
570269/06.
Decided September 20, 2006.
Tenant appeals from an order of the Civil Court, New York County (Peter M. Wendt, J.), dated October 3, 2005, which denied his cross motion for summary judgment dismissing the petition in a nonprimary residence holdover proceeding.
Order (Peter M. Wendt, J.), dated October 3, 2005, affirmed, with $10 costs.
PRESENT: McKEON, P.J., McCOOE, SCHOENFELD, JJ.
We agree that this nonprimary residence holdover proceeding is not susceptible to summary dismissal. The evidence submitted, including the tenant's own deposition testimony, and the sworn allegations of a building lobby attendant that he rarely sees the tenant at the building, raises material questions of fact as to the nature and extent of tenant's presence at and usage of the subject Madison Avenue apartment and a residence owned by tenant in Santa Monica, California. Tenant concededly works on a regular basis from office premises located in Santa Monica, "travels extensively" throughout the country in connection with his employment and is "frequently absent" from the subject Manhattan premises for "open-ended blocks of travel time." On this record, tenant failed to carry his burden to demonstrate a prima facie entitlement to judgment as a matter of law ( see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; West 15th St. Assocs. v. Sassoonian, 156 AD2d 137). The conflict as to whether the subject apartment is actually being used as tenant's primary residence should be resolved at trial, and not on summary judgment ( see West 15th St. Assocs. v. Sassoonian, supra; Kamvan Co. v. Rammel, 132 Misc 2d 909).
This constitutes the decision and order of the court.