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74-76 Charles Realty LLC v Schmidt 2011 NY Slip Op 33403(U) December 19, 2011 Civil Court of the City of New York, New York County Docket Number: 62796/10 Judge: Sabrina B. Kraus Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK: HOUSING PART R X 74-76 CHARLES REALTY LLC, HON. SABRINA B. KRAUS Petitioner-Landlord DECISION & ORDER Index No.: L&T 62796/10

-againstCHARLES SCHMIDT 76 CHARLES STREET APT F NEW YORK, NY 10014, Respondent-Tenant LYDIA WHITCOMB , "JOHN DOE" AND "JANE DOE" Respondents-Undertenants X BACKGROUND

This summary holdover proceeding was commenced by 74-76 CHARLES REALTY LLC (Petitioner) against CHARLES SCHMIDT (Respondent), the rent stabilized tenant of record, seeking to recover possession of Apartment F, at 76 CHARLES STREET, NEW YORK, NY 10014 (Subject Premises) based on the allegation that Respondent is not occupying the Subject Premises as his primary residence. PROCEDURAL HISTORY This proceeding was commenced by service of a Notice of Non-Renewal of Lease dated December 21, 2009. The notice asserted that Respondent does not maintain the Subject premises as his primary residence, and that he resides at 2666 Seminole Avenue, Apt.2, Seaford, New York 11783 (Seaford Residence). The notice further asserts Respondent receives mail at the Seaford Residence, has voted from that address, has his cars registered to that address, and

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maintains a wireless account from that address. The notice further asserts that Respondent sublet the Subject Premises to Lydia Whitcomb who was asserted to be in occupancy at the time the notice was issued. The petition is dated April 7, 2010 and the proceeding was originally returnable April 28, 2010. On April 23, 2010, Respondent appeared pro se and filed a written answer. Respondent's answer asserts that the Subject Premises has been his primary residence since June 1976, and that the Seaford Residence has been his families home since 1962. Respondent asserts the Seaford Residence was his mother's apartment through January 31, 2010. Respondent further asserted that Lydia Whitcomb was his friend and roommate. Respondent initially obtained an adjournment to June 2, 2010 to consult with consul. On June 2, 2010, petitioner moved for discovery. The motion was granted on consent pursuant to a stipulation. The proceeding was marked off calendar pending discovery. On August 19, 2010, Petitioner moved for an order for a judgment and a warrant based on respondent's failure to pay use and occupancy stipulated to in the June 2, 2010 stipulation. The Court (Capella, J) issued an order entering a money judgment against respondent in the amount of $1484.01 and providing Respondent was to satisfy said judgment by August 24, 2010 or his answer would be deemed stricken. On September 3, 2010, Respondent moved to restore the proceeding seeking an extension of time to pay use and occupancy ordered. The Court (Spears, J) issued an order vacating the prior money judgment, which has been satisfied, and entering instead a final judgment of possession with issuance of the warrant stayed five days. The Court also entered a new money judgment against Respondent, for "rent due" in the amount of $2193.68 and directed Respondent 2

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was to pay said sum by September 30, 2010, or provided Petitioner could execute on the warrant. The warrant of eviction issued on October 14, 2010, and the proceeding remained off calendar. On April 29, 2011, Petitioner moved for an order pursuant to CPLR

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