AFF WHGA MN 11E LP v. WIGGINS (2025)

Order (Joan Rubel, J.), entered on or about August 26, 2024, reversed, without costs, petition reinstated, and matter remanded for a new inquest.

The inquest court should not have dismissed the licensee-holdover petition on the ground that the nonappearing respondent, Anthony Wiggins, may have a claim for succession following the vacatur of his mother, the tenant of record. Having defaulted, respondent is deemed to have admitted all traversable allegations in the petition (see Carlyle, LLC v Quik Park Beekman II, LLC, 59 Misc 3d 35, 2018 NY Slip Op 28071 [App Term, 1st Dept 2018]), i.e., that his license to occupy the premises expired upon the tenant's vacatur. Petitioner was not required to affirmatively disprove a potential succession claim in its holdover petition. Nor was petitioner required to disprove an unpleaded defense at the inquest. A claim of succession is an affirmative defense (see generally Cenpark Realty LLC v Gurin, 118 AD3d 553, 553 [2014]), and the burden of proof rests on the party asserting the defense (see Rent Stabilization Code [9 NYCRR] § 2523.5 [e]; South Pierre Assoc. v Mankovitz, 17 Misc 3d 53, 54, 2007 NY Slip Op 27415 [App Term, 1st Dept 2007]; see also 53-63 Partners LP v Wright, 65 Misc 3d 142[A], 2019 NY Slip Op 51717[U] [App Term, 1st Dept 2019]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.