Metropolitan Ins. & Annuity Co. v Hartman (2006 NY Slip Op 50665(U))

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Metropolitan Ins. & Annuity Co. v Hartman

2006 NY Slip Op 50665(U) [11 Misc 3d 140(A)]

Decided on April 19, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 19, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

570297/05
PRESENT: McKeon, P.J., Schoenfeld, J.

Metropolitan Insurance and Annuity Company, Petitioner-Landlord-Appellant,

against

Franklin David Hartman, Respondent-Tenant-Respondent, John Doe and Jane Doe, Respondents-Undertenants.

Landlord appeals from an order of the Civil Court, New York County (Sheldon J. Halprin, J.), entered November 19, 2004, which, inter alia, granted tenant's cross motion to dismiss the petition in a holdover summary proceeding.

PER CURIAM:

Order (Sheldon J. Halprin, J.), entered November 19, 2004, reversed, with $10 costs, tenant's cross motion denied and petition reinstated.

Tenant's CPLR 3211 motion to dismiss the holdover petition should have been denied, since the record does not establish as a matter of law that landlord "intended to relinquish a known right" (Sullivan v Brevard Assoc., 66 NY2d 489, 495 [1985]) when it accepted a single rent check from tenant during the so-called "window period" between termination of the tenancy on nonprimary residence grounds and commencement of the within holdover proceeding (see West Waverly Equities Group v Lieff, 190 Misc 2d 280, 281 [2001]). In reinstating the petition, we do not pass upon landlord's application for leave to conduct discovery and for payment of interim use and occupation, matters not reached below.

This constitutes the decision and order of the court.
Decision Date: April 19, 2006