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Manhattan Mansions, L.P., Petitioner-Landlord-Appellant v. John P. Garvey and Winifred Garvey

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


December 28, 2011

MANHATTAN MANSIONS, L.P., PETITIONER-LANDLORD-APPELLANT,
v.
JOHN P. GARVEY AND WINIFRED GARVEY, RESPONDENTS-TENANTS, AND
MAUREEN GARVEY,
RESPONDENT-UNDERTENANT-RESPONDENT, AND
"JOHN DOE" AND "JANE DOE",
RESPONDENTS-UNDERTENANTS.

Petitioner-landlord appeals from an order of the Civil Court of the City of New York, New York County (Brenda S. Spears, J.), dated March 25, 2011, which denied its motion for summary judgment on the holdover petition.

Per curiam.

Manhattan Mansions, L.P. v Garvey

Decided on December 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: Lowe, III, P.J., Shulman, Torres, JJ

Order (Brenda S. Spears, J.), dated March 25, 2011, reversed, with $10 costs, petitioner's motion for summary judgment granted, and final judgment awarded in favor of petitioner upon its cause of action for possession. Issuance of the warrant of eviction shall be stayed for 30 days from service of a copy of this order with notice of entry.

Respondent Maureen Garvey, the daughter of the departed stabilized tenants, failed to raise an issue of fact with respect to her proffered succession defense. The record evidence conclusively establishes that tenants relocated to Florida a number of years ago, but did not permanently vacate the subject apartment until, at the earliest, April 1, 2009, when, during the term of their most recent renewal lease, they notified landlord in writing that they had "vacated and surrendered" the apartment. In the absence of any evidence tending to show that respondent "resided with" the tenants in the subject apartment during the two-year period immediately preceding the tenants' permanent vacatur (Rent Stabilization Code [9 NYCRR] § 2523.5[b][1]), respondent's succession claim must fail (see 72A Realty Assoc. V Kutno, 15 Misc 3d 100 [2007]; 360 W. 55th St. L.P. v Anvar, 13 Misc 3d 7 [2006]). That respondent may on occasion have tendered rent in her own name during her parents' extended absence does not, without more, suffice to raise a triable issue with respect to the parents' permanent vacatur date, particularly since respondent's father (the first-named tenant) continued to make rent payments in his name during the period in which he and his wife were living in Florida.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: December 28, 2011

20111228

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