Alta Apartments, LLC, Appellant, v. Barton Weisbond, Respondent, et al., Respondents

OPINION OF THE COURT

Per Curiam.

Order entered November 14, 2003 modified to deny tenant’s cross motion for summary judgment, to reinstate the petition, and to remand the matter to Civil Court for further proceedings; as modified, order affirmed, with $10 costs to petitioner appellant.

This holdover proceeding, seeking possession of a rent-stabilized apartment on the ground that the tenant of record, Barton Weisbond, violated the lease by subletting or assigning the premises to his son, Spencer Weisbond, is not susceptible to summary dismissal. This thin record so far developed raises triable issues as to the nature and extent of Spencer’s occupancy in the apartment, matters peculiarly within respondents’ knowledge. We note that the record is devoid of any evidence tending to show that Spencer had extensive occupancy ties to the subject apartment (cf. 235 W. 71 St. LLC v Chechak, 16 AD3d 242 [2005]; Hudson St. Equities Group, Inc. v Escoffier, 2003 NY Slip Op 51213[U] [App Term, 1st Dept 2003]), and, indeed, that Spencer’s own affidavit appears to acknowledge that he never contemporaneously resided in the subject apartment with his father.

In reinstating the petition, we do not pass upon landlord’s application for discovery and use and occupancy, issues not reached below. Our disposition is without prejudice to the landlord’s right to renew its application for such relief in the Civil Court.

Gangel-Jacob, J.

(dissenting). I respectfully dissent and would affirm. Once again we consider contentions of nonprimary residence brought in the guise of an illegal sublet to a family member, presumably to avoid the requirements of the “Golub” notice or perhaps as a “fishing expedition” in contemplation of future litigation.

Summary judgment dismissal of the holdover petition was warranted, since landlord failed to come forward with evidence of an illegal sublet in opposition to respondents’ factual showing on their motion. All that was shown is that the stabilized apartment may no longer be the primary residence of the 73-year-old tenant, who is currently in a nursing home, and that the tenant’s adult son is now “taking care” of the apartment on a temporary basis. In the absence of any showing whatsoever that a leasehold relationship existed between the father and son (see 445/86 Owners Corp. v Haydon, 300 AD2d 87, 88-89 [2002]), the illegal sublet petition was properly dismissed. Landlord’s allegations may be pursued in the context of a nonprimary residence holdover proceeding (see 235 W. 71 St. LLC v Chechak, 16 AD3d 242 [2005]; PLWJ Realty v Gonzalez, 285 AD2d 370 [2001], lv dismissed 97 NY2d 676 [2001]; Park Holding Co. v Rosen, 241 AD2d 304 [1997]).

Davis, J.E, and Schoenfeld, J., concur; Gangel-Jacob, J., dissents in a separate memorandum.