REALTY CORP v. MOLLICA

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Supreme Court, Appellate Division, First Department, New York.

U.B.O. REALTY CORP., Petitioner-Appellant, v. Santo MOLLICA, Respondent-Respondent.

Decided: January 19, 1999

SULLIVAN, J.P., LERNER, RUBIN and TOM, JJ. Jason S. Garber, for Petitioner-Appellant. Polly Eustis, for Respondent-Respondent.

Order of the Appellate Term of the Supreme Court, First Department (McCooe, J.P., Freedman and Davis, JJ.), entered December 15, 1997, which, in a holdover proceeding, affirmed an order of the Civil Court, New York County (Leona Freedman, J.), entered on or about September 13, 1996, dismissing the proceeding after trial, unanimously affirmed, with costs.

Despite the commercial nature of the leases, the finding that petitioner landlord knew of or acquiesced in respondent tenant's residential use of these store front premises has sufficient support in the record and, accordingly, the petition was properly dismissed (see, Ten Be Or Not Ten Be v. Dibbs, N.Y.L.J., June 12, 1985, at 11, col. 4, affd. 117 A.D.2d 1028, 499 N.Y.S.2d 567;  West Side Equities v. Cerigo, N.Y.L.J., June 17, 1993, at 24, col. 1).   We note the premises were already equipped for residential use when respondent moved in, the length and character of respondent's residential tenancy, and the deletion from the last lease, at respondent's request, of the phrase “and for no other purpose” from the provision limiting use of the premises to a copy shop.

MEMORANDUM DECISION.

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