13775 REALTY, LLC, pet-land-app, v. ANNETTE FOGLINO, res-tent, -AND- “JOHN DOE, AND “JANE DOE,” res-und

16-104. 13775 REALTY, LLC, pet-land-app, v. ANNETTE FOGLINO, res-tent, -AND- “JOHN DOE, AND “JANE DOE,” res-und — Order (Jack Stoller, J.), dated December 7, 2015, insofar as appealed from, affirmed, with $10 costs.

We agree that landlord’s possessory claim based, in part, on allegations that tenant listed her rent stabilized apartment on the Airbnb website and engaged in rent profiteering, should be decided at a plenary trial, and not on summary judgment. Landlord’s submission below, consisting largely of hearsay evidence, was insufficient to satisfy its initial burden of establishing, prima facie, that tenant engaged in commercial exploitation or rent profiteering (see Rent Stabilization Code [9 NYCRR] §§2524.3[h], 2525.6[b]; Ginezra Assoc. LLC v. Ifantopoulos, 70 AD3d 427, 430 [2010]). Among the issues that remain unresolved on the prediscovery record now before us are the number of times tenant sublet the premises through Airbnb or otherwise and the amount of any overcharges (see 335-7 LLC v. Steele, 43 Misc 3d 144[A], 2014 NY Slip Op 50891[U] [App Term, 1st Dept 2014]; see also Cambridge Dev., LLC v. Staysna, 68 AD3d 614 [2009]).