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1234 Broadway LLC, Petitioner-Landlord v. Pou Long Chen

New York Supreme and/or Appellate Courts Appellate Term, First Department


September 9, 2011

1234 BROADWAY LLC, PETITIONER-LANDLORD-
v.
POU LONG CHEN, RESPONDENT-TENANT, -AND- FA QUAN LAM,
RESPONDENT-OCCUPANT-RESPONDENT,
-AND- "JOHN AND/OR JANE DOE," RESPONDENTS.

Per curiam.

1234 Broadway LLC v Pou Long Chen

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on September 9, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Torres, J.P., Shulman, Hunter, Jr., JJ

Petitioner-landlord appeals from those portions of an order of the Civil Court of the City of New York, New York County (Brenda S. Spears, J.), entered April 5, 2011, which denied its motion to dismiss respondent Fa Quan Lam's first affirmative defense and for summary judgment on the petition in a holdover summary proceeding.

Order (Brenda S. Spears, J.), dated April 5, 2011, reversed, with $10 costs, petitioner's motion for summary judgment on its possessory claim granted, and respondent Fa Quan Lam's first affirmative defense dismissed. Execution of the warrant of eviction shall be stayed for 30 days from service of a copy of this order with notice of entry.

Petitioner-landlord established its entitlement to summary judgment on its possessory claim against respondent Fa Quan Lam. The record reveals that respondent entered into occupancy of the subject single room occupancy (SRO) unit after paying a substantial sum of money to the former occupant, without any communication with, or permission from, petitioner, and that respondent either paid rent directly to this former occupant or tendered the rent in cash to petitioner and received rent receipts in the name of the long-departed tenant of record (see 117 W. 57th St. Realty Corp. v Estate of Hultgren, 205 AD2d 363 [1994], revg NYLJ, September 14, 1993, at 21, col 1, for reasons stated in dissent of McCooe, J. at Appellate Term).

In opposition, respondent failed to raise a triable issue with respect to whether he was a "permanent tenant" entitled to Rent Stabilization protection (see 9 NYCRR § 2520.6[j]). On this record and without more, respondent's conclusory assertions that he was known to the building staff and received mail at the premises are insufficient to defeat summary judgment. Thus, in the absence of any evidence that there was any express or implied landlord-tenant relationship, petitioner was entitled to summary judgment of possession (see Branic Intl. Realty Corp. v Pitt, 30 Misc 3d 29, 30 [2010]; 411 E. 70th St., LLC v Tsingos, 2002 NY Slip Op 50147[U] [2002]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: September 09, 2011

20110909

© 1992-2011 VersusLaw Inc.



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