Opinion
57001804
Decided May 18, 2005.
Petitioner appeals from that portion of an order of the Civil Court, New York County, entered August 8, 2003 (Debra Rose Samuels, J.) which granted a cross motion by respondent Liebman for summary judgment dismissing the petition in a holdover summary proceeding. Respondent Liebman cross-appeals from so much of the aforesaid order as granted petitioner's motion to the extent of dismissing respondent's counterclaims "without prejudice".
Order entered August 8, 2003 (Debra Rose Samuels, J.) affirmed, with $10 costs.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. PHYLLIS GANGEL-JACOB, Justices.
Respondent Liebman (hereinafter "subtenant") demonstrated his entitlement to judgment as a matter of law through his sworn allegations that the window alterations complained of by the petitioner-prime tenant were made by the building owner in December of 2002, "during business hours and while [petitioner] and her employees were in the suite," and that petitioner continued to accept rent from subtenant for approximately six months before seeking to enforce the alleged lease violation. Since petitioner failed to directly controvert these allegations or to otherwise raise a triable issue of fact in her terse opposition papers, summary judgment dismissal was properly granted to the subtenant ( see Zuckerman v. City of New York, 49 NY2d 557, 562).
With respect to the subtenant's cross appeal, the motion court properly enforced the "no counterclaim" provisions unambiguously set out in paragraph 14 of the governing sublease agreement in dismissing without prejudice the subtenant's counterclaims.
This constitutes the decision and order of the court.