Opinion
570199/10.
Decided August 24, 2010.
Petitioner appeals, as limited by its brief, from that portion of an order of the Civil Court of the City of New York, New York County (Eardell J. Rashford, J.), dated September 25, 2009, which granted respondents' motion for summary judgment dismissing the petition in a holdover summary proceeding.
PRESENT: McKeon, P.J., Schoenfeld, J.
Order (Eardell J. Rashford, J.), dated September 25, 2009, insofar as appealed from, reversed, with $10 costs, respondents' motion denied, petition reinstated and matter remanded for further proceedings.
This licensee holdover proceeding is not susceptible to summary disposition, since respondents failed to establish that petitioner's acceptance of rent from respondent Elizabeth Bass, in the circumstances presented, constituted a waiver of petitioner's right to object to respondents' continued occupancy of the apartment premises ( see Sullivan v Brevard Assoc., 66 NY2d 489; Brooks v Kenton Assoc. Ltd., 169 AD2d 466). In light of Bass' concession that she executed three renewal leases addressed to Nikki Robinson, the rent stabilized tenant of the apartment, a triable issue exists as to whether respondents misled petitioner into believing that Robinson still resided at the premises. Additionally, respondents failed to make a prima facie showing that Robinson was an illusory prime tenant. The nature of the relationship between respondents and Bass is unclear on the present record, and respondents' own evidence raises a triable issue as to whether they were Robinson's roommates, as opposed to subtenants.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.