Opinion
2019-1125 K C
02-05-2021
645 BKLYN REALTY, LLC, 645 Bklyn 12 Realty, LLC, Oceanwalk Beach Bklyn Realty, LLC, Oceanwalk Condo Bklyn Realty, LLC, 780 Bklyn Realty, LLC, Minnetonka III Bklyn Realty, LLC, and Minnetonka V Bklyn Realty, LLC, as Tenants-In-Common, Appellants, v. Sandra BEECHER-SAKIL, Respondent, et al., Undertenants.
Kaufman, Friedman, Plotnicki & Grun, LLP (Ari Grun of counsel), for appellant. Ellery Ireland, for respondent (no brief filed).
Kaufman, Friedman, Plotnicki & Grun, LLP (Ari Grun of counsel), for appellant.
Ellery Ireland, for respondent (no brief filed).
PRESENT: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ.
ORDERED that the order is affirmed, without costs.
Landlords commenced this licensee proceeding ( see RPAPL 713 [7] ) in April 2018 to recover possession of the subject apartment alleging that Sandra Beecher-Sakil (occupant) was a licensee of the tenant of record, Victor Johnson (tenant); that tenant died in June 2011; and that, after tenant's renewal lease expired, occupant's license to occupy the apartment terminated. In her answer, occupant asserted, among other things, that she had been a tenant on the initial lease for the apartment, and that she had succession rights. Landlords moved for summary judgment on the petition or, in effect, in the alternative, for summary judgment dismissing those affirmative defenses. In an order dated September 7, 2018, the Civil Court granted landlords’ motion for summary judgment and awarded landlords a final judgment of possession. Occupant thereafter moved for leave to reargue and, subsequently, separately moved for leave to renew, her opposition to landlords’ motion. In an order entered February 21, 2019, the Civil Court granted occupant's motions, and, upon reargument and renewal, denied landlords’ motion for summary judgment. We affirm.
The Civil Court properly granted occupant's motion for leave to reargue her opposition to landlords’ motion for summary judgment to the extent that it was based upon her claim for succession rights. The Civil Court was within its discretion to find that it had "overlooked or misapprehended" ( CPLR 2221 [d] ) relevant factual issues in its September 7, 2018 order, and to find, upon reargument, that occupant's sworn statements raised issues of fact with respect to occupant's claim for succession rights and landlords’ allegation that occupant waived that claim ( see Matter of Jourdain v New York State Div. of Hous. & Community Renewal , 159 AD3d 41 [2018] ; 700 Bklyn Realty, LLC v Samuel , 69 Misc 3d 126[A], 2020 NY Slip Op 51115[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).
The Civil Court also properly granted occupant's motion for leave to renew to the extent that it was based upon her claim that she is a tenant. Occupant submitted an affidavit executed by Sharon Calder, who stated that she had rented the apartment to both tenant and occupant in 2007. The Civil Court properly considered the affidavit, as occupant provided a reasonable justification for her initial failure to present it to the court ( see CPLR 2221 [e] [3] ). Ms. Calder's sworn statement regarding the original parties to the lease raised an issue of fact with respect to occupant's affirmative defense asserting that she was not a licensee, but rather a tenant, in the initial vacancy lease ( see Rent Stabilization Code [9 NYCRR] § 2522.5 [g] [1] ; Matter of Century Operating Corp. v Popolizio , 60 NY2d 483 [1983] ).
In view of the foregoing, upon reargument and renewal, the Civil Court properly denied landlords’ motion for summary judgment.
Accordingly, the order is affirmed.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.