AMUSH ENTERPRISES, LLC, pet-res v. DARREN WALLACE AND DARREN WALLACE DESIGN INC., res-app

14-375. AMUSH ENTERPRISES, LLC, pet-res v. DARREN WALLACE AND DARREN WALLACE DESIGN INC., res-app — Order (Frank P. Nervo, J.), dated February 22, 2013, modified by denying those branches of petitioner's motion which were to dismiss respondents' defenses alleging that the premises were rented for residential purposes and that petitioner was not a proper party to maintain this proceeding, and for summary judgment of possession; as modified, order affirmed, without costs.

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14-375. AMUSH ENTERPRISES, LLC, pet-res v. DARREN WALLACE AND DARREN WALLACE DESIGN INC., res-app — Order (Frank P. Nervo, J.), dated February 22, 2013, modified by denying those branches of petitioner’s motion which were to dismiss respondents’ defenses alleging that the premises were rented for residential purposes and that petitioner was not a proper party to maintain this proceeding, and for summary judgment of possession; as modified, order affirmed, without costs.

This “commercial” holdover proceeding is not susceptible to summary disposition. Despite the commercial nature of the written lease agreement, the limited record so-far developed raises triable issues as to whether petitioner knew or acquiesced in respondents’ residential use of the demised premises (see U.B.O. Realty Corp. v. Mollica, 257 AD2d 460 [1999]). In this regard, the affidavit of the first named respondent alleges that petitioner’s agent knew that the premises were leased for residential purposes, and that the agent was in the apartment weekly to observe the progress of respondents’ renovations, which included the installation of a bathroom, full kitchen and hardwood floors. In the event premises are used for residential purposes with the petitioner’s knowledge or acquiescence, a holdover proceeding must be brought in the Housing Part, and a proceeding brought in the Commercial Part must be dismissed (see 22 NYCRR 208.42[A]; 379 E. 10th St., LLC v. Miller, 23 Misc 3d 137[A], 2009 NY Slip Op 50864[U] [App Term, 1st Dept 2009]).

AMUSH ENTERPRISES, LLC, pet-res v. DARREN WALLACE AND DARREN WALLACE DESIGN INC., res-app

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