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350 Cent. Park W. Assoc. v Seiff
2006 NY Slip Op 51266(U) [12 Misc 3d 136(A)]
Decided on July 5, 2006
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 5, 2006
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: DAVIS, J.P., GANGEL-JACOB, J.


350 Central Park West Associates, Petitioner-Appellant,No.570473/04

against

Eric A. Seiff, as Executor for the Estate of Casper Citron, Respondent, -and- Gavin Citron, Respondent-Respondent, -and- "John Doe" and/or "Jane Doe", Respondents-Undertenants.


Petitioner appeals from an order of the Civil Court, New York County (Michele D. Schreiber, J.), dated June 7, 2005, which denied its motion to dismiss the third affirmative defense interposed by respondent Gavin Cintrin a holdover summary proceeding.


PER CURIAM:

Order (Michelle D. Schreiber, J.), affirmed, with $10 costs.

Civil Court properly denied petitioner's motion to dismiss the succession defense interposed by respondent Gavin Citron, the son of the deceased tenant of record. While the deceased tenant elected in his will "not to leave any part of [his] estate to [respondent]," such a decree, even if unchallenged by respondent at probate, did not result in respondent's forfeiture, on collateral estoppel grounds, of any succession rights to the stabilized apartment. Inasmuch as a residential lease "is not a property right that devolves upon death to be passed from one generation to another" (Joint Props. Owners v Deri, 113 AD2d 691, 694 [1986]), the deceased tenant's testamentary intent cannot serve to abrogate a right to succession conferred exclusively by statute. In affirming, we do not pass on the merits of respondent's underlying succession claim.

This constitutes the decision and order of the court.
Decision Date: July 5, 2006