2118 GROUP LLC v. LIOR GROUP LLC (2023)

Order (Kim M. Parker, J.), dated March 7, 2023, modified, tenant's motion denied, petition reinstated, that portion of landlord's cross motion seeking summary judgment dismissing the counterclaim granted, and the matter remanded to Civil Court for further proceedings; as modified, order affirmed, with $10 costs.

This holdover proceeding, based upon allegations that the corporate tenant failed to obtain liability insurance as required by the lease, is not subject to summary judgment dismissal. The limited record so far developed fails to establish as a matter of law that the proceeding was improperly commenced in the Commercial Part (see 22 NYCRR 208.42[a]; U.B.O. Realty Corp. v Mollica, 257 AD2d 460 [1999]; Amush Enters., LLC v Wallace, 47 Misc 3d 154[A], 2015 NY Slip Op 50851[U] [App Term, 1st Dept 2015]). In this regard, the subject premises, consisting of the “second, third, fourth, and fifth floors and the four (4) residential apartments” in the building, includes both common areas and dwelling units; these premises were rented to the corporate tenant pursuant to a triple net lease; tenant is a business that rents apartments to others; and it is unclear on this record if tenant or any others reside in any of the apartments.

Tenant's counterclaim for attorneys’ fees was denied on the merits by the motion court, but was not formally dismissed. Thus we modify accordingly.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.