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Philadelphia Skyline

Down East Properties, Inc. v. DiMase

(Civ. Ct. N.Y. Cty. 8/15/05)

Summary judgment for landlord in this residential holdover proceeding against a tenant-at-will. The tenant's husband's family owned this luxury apartment. Years earlier, the husband's family had sued to evict both tenant and her husband, and a warrant of eviction was obtained; however, the husband's family never executed the warrant. The tenant and her husband subsequently separated and the husband moved out of the apartment. This case resulted when the estranged husband's family again sued tenant. Tenant attempted to dismiss this proceeding, claiming the prior action by her estranged husband's family was still pending. The court rejected this argument, ruling the prior holdover proceeding was deemed abandoned. Next, tenant's motion for a declaratory judgment denied because the Housing Court lacked jurisdiction to grant such relief. Moreover, tenant was correctly sued as a tenant-at-will because an owner's acquiescence in a continued occupancy where the occupancy is subordinate to the title of owner may justify the inference that a tenancy-at-will has been created. Finally, landlord maintained its burden in establishing the prima facie elements of its petition and tenant did not dispute them, therefore summary judgment for landlord was granted.  Link to Full Text of Decision

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