Opinion
570467/03.
Decided February 11, 2004.
Landlord appeals from an order of the Civil Court, New York County, dated June 10, 2003 (Ernest J. Cavallo, J.), insofar as it denied its motion for partial summary judgment dismissing tenants' affirmative defense.
Order dated June 10, 2003 (Ernest J. Cavallo, J.) affirmed, with $10 costs.
PRESENT: HON. WILLIAM P. McCOOE, J.P. HON. WILLIAM J. DAVIS HON. MARTIN SCHOENFELD, Justices.
Civil Court correctly denied landlord's motion for partial summary judgment in this holdover summary proceeding, since there is a genuine dispute as to tenants' primary residence in the single room occupancy premises. Opposing landlord's claim that they allowed others to occupy some of the individual units leased to them, tenants submitted sufficient evidence of their connection to these rooms to raise a triable issue that they maintain their primary residence in all the space (see, e.g., Sharp v. Melendez, 139 AD2d 262). The conflict as to whether tenants use the units in question as a combined primary residence should be resolved at trial, and not on summary judgment (see, West 15th St. Assocs. v. Sassoonian, 156 AD2d 137; Kamvan Co. v. Rammel, 132 Misc 2d 909).
This constitutes the decision and order of the court.