Opinion
570044/05.
Decided September 28, 2005.
Tenant appeals from an order of the Civil Court, New York County, entered December 21, 2004 (Jean T. Schneider, J.) which denied his motion for summary judgment, without prejudice to renewal upon completion of discovery, and granted a cross motion by landlord for leave to conduct discovery in a nonprimary residence holdover proceeding.
Order entered December 21, 2004 (Jean T. Schneider, J.), affirmed, with $10 costs.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
We agree that the nonprimary residence holdover proceeding is not susceptible to summary dismissal at this juncture. The evidence contained in the pre-discovery record before us, including the tenant's acknowledgment that he regularly travels to California and the sworn allegations of landlord's building personnel that tenant is rarely "encountered" in the seven-unit Madison Avenue building premises, was insufficient to establish as a matter of law that tenant primarily resides in the subject apartment ( see West 15th St. Assocs. v. Sassonian, 156 AD2d 187; Tulip Apts., Inc. v. Sullivan, 8 Misc 3d 126[A], 2005 NY Slip Op 50900[U] [App Term, 1st Dept]).
This constitutes the decision and order of the court.