Opinion
No. 571176/23
03-19-2024
352-354 West 48th Street Housing Development Fund Corporation, Petitioner-Landlord-Appellant, v. Claribelle Tineo, Respondent-Tenant-Respondent, and Sophia Montalvan and "Jane Doe,", Respondents-Occupants-Respondents.
Unpublished Opinion
PRESENT: Tisch, J.P., James, Perez, JJ.
PER CURIAM
Petitioner-landlord, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Clifton A. Nembhard, J.), dated May 29, 2020 which denied its motion for summary judgment of possession, granted respondents' cross motion to amend their answer, and directed petitioner to produce stipulated discovery in a holdover summary proceeding.
Order (Clifton A. Nembhard, J.), dated May 29, 2020, modified to deny respondents' motion for leave to amend their answer; as modified, order affirmed, with $10 costs.
This holdover proceeding is not susceptible to summary disposition, since triable issues are raised as to respondent Tineo's primary residence at the subject HDFC apartment. Generally speaking, a "conflict as to where the primary residence really is should be resolved at trial. This is especially the case where there is some evidence that the person claiming [primary residence] rights had an occupancy interest somewhere else during the relevant time period" (Extell Belnord LLC v Uppman, 113 A.D.3d 1, 12 [2013][internal quotation marks and citation omitted]). Contrary to landlord's argument, respondent Tineo's filing of income taxes from a Highland Mills, New York address is not dispositive as a matter of law on the issue of primary residence, especially in the context of a motion for summary judgment (see 47 HK Realty, LLC v O'Leary, 55 Misc.3d 129 [A], 2017 NY Slip Op 50384[U] [App Term, 1st Dept 2017]; see also 310 E. 23rd LLC v Colvin, 41 A.D.3d 149 [2007] ; Glenbriar Co. v Lipsman, 11 A.D.3d 352, 353 [2004], affd on other grounds 5 N.Y.3d 388 [2005]; cf. Matter of Ansonia Assoc. L.P. v Unwin, 130 A.D.3d 453 [2015]). Furthermore, Tineo offered explanations for the documentary evidence linking her to the Highland Mills, New York property. Resolution of the fact and credibility issues raised by the parties' submissions requires resolution by trial (see Extell Belnord LLC v Uppman, 113 A.D.3d at 12; West 157th St. Assoc. v Sassoonian, 156 A.D.2d 137 [1989]; Coronet Props. Co. v Adelman, 112 A.D.2d 100 [1985]).
However, the Court should have denied respondents' motion to amend their answer to add the affirmative defense of waiver as the proposed amendment is devoid of merit (see Kapitus Servicing, Inc. v MS Health, Inc., 216 A.D.3d 459, 460 [2023]). Waiver is unavailing because the proprietary lease requires a "writing expressly approved by the Directors," and no such writing was alleged here (see Wind Point Partners VII-A, L.P. v Hoya Corp., 185 A.D.3d 478, 478-479 [2020]). Waiver cannot be inferred "to frustrate the reasonable expectations of the parties embodied in a lease when they have expressly agreed otherwise" (Jefpaul Garage Corp. v Presbyterian Hosp. in City of NY, 61 N.Y.2d 442, 446 [1984]).
To the extent that the order sua sponte ordered petitioner to turn over certain discovery, that portion of the order is not appealable as of right (see CCA 1702[a][2]; Sholes v Meagher, 100 N.Y.2d 333, 335 [2003]).