Opinion
570968/15
03-01-2016
230-79 Equity, Inc., Petitioner-Landlord-Appellant, v. Beatrice Frank, Respondent-Tenant-Cross-Appellant, - and - "Jane Doe," Respondent.
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
Landlord, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Arlene H. Hahn, J.), entered March 26, 2015, which denied its motion for summary judgment of possession. Tenant cross appeals from that portion of the aforesaid order which granted landlord's motion to strike tenant's second counterclaim and denied tenant's cross motion to dismiss the holdover petition.
Per Curiam.
Order (Arlene H. Hahn, J.), entered March 26, 2015, modified by granting landlord's motion for summary judgment on the holdover petition; as modified, order affirmed, with $10 costs. Issuance of the warrant of eviction shall be stayed for 10 days from the service of a copy of this order with notice of entry so that respondent may cure the breach of lease (see RPAPL 753[4]).
Petitioner's motion for summary judgment on the holdover petition should have been granted. The undisputed record evidence establishes that respondent Beatrice Frank, the proprietary lessee, breached Paragraph 14 of the governing proprietary lease agreement by permitting her daughter to reside in the subject cooperative apartment, while respondent lived elsewhere. Paragraph 14 provides that the apartment may not be used for any purpose "other than as a private dwelling for the Lessee and Lessee's spouse, their children, grandchildren, parents, grandparents, brothers and sisters and domestic employees." This language is "correctly construed . . . as permitting occupancy by the listed persons other than the lessee only if the lessee maintains a concurrent occupancy" (445/86 Owners Corp. v Haydon, 300 AD2d 87 [2002]; but see Wilson v Valley Park Estates Owners Corp., 301 AD2d 589 [2003]).
Respondent's second counterclaim was properly stricken. Allegations that petitioner made "intentional efforts" to "wrongfully terminate" the lease, failed to state a claim for breach of the warranty of habitability ( see Real Property Law § 235-b). In any event, respondent cannot assert a warranty of habitability claim since she admittedly did not reside in the apartment ( see Genson v Sixty Sutton Corp., 74 AD3d 560 [2010]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: March 01, 2016