13-086 LUDLOW 65 REALTY LLC, pet-app, v. J. CHIN, res-ten, AND CATHY LUNDGREN, res-res, — Order (Jean T. Schneider, J.), dated December 1, 2012, modified to grant petitioner’s cross motion for summary judgment on its cause of action for possession; as modified, order affirmed, with $10 costs. Issuance of the warrant shall be stayed for 30 days from the service of a copy of this order with notice of entry. Appeal from order granting tenant’s motion to restore the case to the calendar (Jean T. Schneider, J.), dated December 1, 2012, dismissed, without costs, as academic.
Respondent Lundgren failed to raise an issue of fact with respect to her proffered succession defense. The record evidence, including respondent’s own deposition testimony, conclusively established that although the record tenant (Chin) took up primary residence elsewhere in about 1979, he did not permanently vacate the apartment at any time prior to the commencement of this holdover eviction proceeding in May 2011. The record shows that tenant tendered rent for several years after he departed, hired an attorney to defend a nonpayment proceeding brought against him, continues to maintain some personal belongings in the apartment where he, according to respondent, “comes and goes” and, perhaps most significantly, completed a DHCR form in April 2011, indicating that he is the record tenant and that respondent was residing with him in the apartment as a “family member.” Inasmuch as the record does not permit a finding that tenant permanently vacated the apartment prior to May 2011, and there being no showing that respondent “resided with” the tenant in the subject apartment during the oneyear period immediately preceding tenant’s permanent vacatur, if any (see New York City Rent and Eviction Regulations [9 NYCRR] §2204.6 [d][1]), respondent’s succession claim must fail (see Third Lenox Terrace Assocs. v. Edwards, 91 AD3d 532 [2012]; 72A Realty Assocs. v. Kutno, 15 Misc 3d 100 [2007]).
