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Eddie Chew and Angelus Chan v. Michael P. Mckenzie

New York Supreme and/or Appellate Courts APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


December 22, 2011

EDDIE CHEW AND ANGELUS CHAN,
PETITIONERS-LANDLORDS- APPELLANTS,
v.
MICHAEL P. MCKENZIE,
RESPONDENT-TENANT-RESPONDENT,
AND JAN GARDEN CASTRO, JOHN DOE AND JANE DOE,
RESPONDENTS-UNDERTENANTS.

Landlords appeal from an order of the Civil Court of the City of New York, New York County (John H. Stanley, J.), dated January 10, 2011, which granted tenant's motion for summary judgment dismissing the petition and denied landlords' cross motion for summary judgment on the petition in a holdover summary proceeding.

Per curiam.

Chew v McKenzie

Decided on December 22, 2011

Appellate Term, First Department

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

Order (John H. Stanley, J.), dated January 10, 2011, reversed, with $10 costs, tenant's motion denied, landlords' cross motion for summary judgment on its possessory claim granted, with issuance of the warrant of eviction permanently stayed.

It being undisputed that respondent-undertenant remained in possession nearly two years after commencement of this illegal sublet holdover proceeding, tenant was not entitled to summary judgment dismissal of the petition based upon his alleged cure (see Langham Mansions Co. v Bodine, 117 Misc 2d 925, 926-927 [1983], lv dismissed 59 NY2d 1026 [1983]). Since the record establishes beyond factual dispute that tenant violated a substantial obligation of the tenancy by subletting the stabilized apartment without landlord's written consent (see Real Property Law § 226-b), while residing elsewhere, landlords are entitled to summary judgment on their possessory claim (see Langham Mansions Co. v Bodine, 117 Misc 2d at 927). However, in light of the fact that tenant effected a cure by removing the undertenant, albeit belatedly, we permanently stay issuance of the warrant of eviction.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: December 22, 2011

20111222

© 1992-2011 VersusLaw Inc.



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