Bruckner Realty LLC v. Cruz

• Citation: 29 N.Y.S.3d 162 (Mem),139 A.D.3d 413,2016 N.Y. Slip Op. 03429
• Parties: In re BRUCKNER REALTY LLC, Petitioner–Appellant, v. Jeannette CRUZ, Respondent–Respondent.
• Decision Date: 03 May 2016
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 413

29 N.Y.S.3d 162 (Mem)

2016 N.Y. Slip Op. 03429

In re BRUCKNER REALTY LLC, Petitioner–Appellant,

v.Jeannette CRUZ, Respondent–Respondent.

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

May 3, 2016.

Sontag & Hyman, P.C., Roslyn Heights (Marc H. Hyman of counsel), for appellant.

Jeannette Cruz, respondent pro se.

Order of the Appellate Term, Supreme Court, First Department, entered on or about March 16, 2015, which modified an order of Civil Court, Bronx County (Joseph E. Capella, J.), entered September 4, 2014, to deny the parts of petitioner's summary judgment motion that sought to dismiss respondent's second and third “affirmative defenses” and first and second “defenses” and for summary judgment of possession, unanimously affirmed, without costs.

Since petitioner's first summary judgment motion was made after respondent's deemed general denial, whereas its second such motion was made after her answer, the second motion was not barred by the rule against successive summary judgment motions (see e.g. Healthcare I.Q., LLC v. Tsai Chung Chao, 118 A.D.3d 98, 102–103, 986 N.Y.S.2d 42 [1st Dept.2014]

).

On the merits, petitioner failed to establish its prima facie case. The fact that the subject building has 142 dwelling units but space for only 56 cars is not determinative (see Missionary Sisters of Sacred Heart v. Meer, 131 A.D.2d 393, 517 N.Y.S.2d 504 [1st Dept.1987]

). To the extent Matter of 110–15 71st Rd. Assoc., LLC v Division of Hous. & Community Renewal, 54 A.D.3d 679, 681, 863 N.Y.S.2d 713 (2d Dept.2008), lv. denied 12 N.Y.3d 712, 2009 WL 1544056 (2009) is to the contrary, we decline to follow it. In this Department, the test of whether a service is a required ancillary service is “whether [it] was provided primarily for the use of the tenants, not whether [it] was used primarily by the tenants” (Matter of

501 E. 87th St. Realty Co., L.L.C. v. New York State Div. of Hous. & Community Renewal, 22 A.D.3d 294, 295, 804 N.Y.S.2d 20 [1st Dept.2005] [internal quotation marks omitted] ).

TOM

, J.P., RENWICK, RICHTER, KAPNICK, WEBBER, JJ., concur.