Opinion
570153/04.
Decided July 22, 2004.
Landlord appeals from an order of the Civil Court, New York County, dated October 15, 2002 (Eileen N. Nadelson, J.) which denied its motion to resettle a prior order dated May 23, 2002 dismissing the underlying commercial holdover summary proceeding on consent.
Order dated October 15, 2002 (Eileen N. Nadelson, J.) affirmed, with $10 costs.
PRESENT: HON. WILLIAM J. DAVIS, J.P., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
The record affords no basis to resettle the May 23, 2002 consent order to provide that the dismissal of the holdover proceeding was "without prejudice". We note that both sides had moved for summary judgment and had joined issue on whether tenant could be evicted as a commercial holdover where, notwithstanding the commercial nature of the lease, tenant had exclusively resided in the basement apartment — which was equipped for residential use and had been registered as rent stabilized — since 1994 (see U.B.O. Realty Corp. v. Mollica, 257 AD2d 460). Our disposition is without prejudice to landlord's right, if so advised, to maintain a residential holdover proceeding upon any authorized ground.
This constitutes the decision and order of the court.