IN RE: Fred Giancola (2010)

Argued-January 21, 2010

DECISION & ORDER

John C. Gray, South Brooklyn Legal Services, Brooklyn, N.Y. (Shantonu Basu, Edward Josephson, and Brent Meltzer of counsel), for Fifth Avenue Committee, amicus curiae.

In a holdover proceeding to recover possession of certain leased premises, the petitioners appeal, by permission, from an order of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts dated August 19, 2008, which affirmed an order of the Civil Court, Kings County (Milin, J.), dated April 3, 2007, granting the motion of Deborah Whitman to dismiss the petition.

ORDERED that the order dated August 19, 2008, is reversed, on the law, with costs, the order dated April 3, 2007, is reversed, the motion of Deborah Whitman to dismiss the petition is denied, and the matter is remitted to the Civil Court, Kings County, for further proceedings consistent herewith.

For reasons stated in our decision and order on the companion appeal (see Matter of Giancola v. Middleton, AD3d [decided herewith] ), the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts erred in affirming the order of the Civil Court granting Deborah Whitman's motion to dismiss the petition in this holdover proceeding.

DILLON, J.P., MILLER, ENG and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court