K C. 2011-1611 K C. HOMEWOOD GARDENS ESTATES, LLC, res, v. KIRBY, ap
2011-854 K C. 2011-1611 K C. HOMEWOOD GARDENS ESTATES, LLC, res, v. KIRBY, ap — Appeals from (1) an order of the Civil Court of the City of New York, Kings County (George Michael Heymann, J.), entered January 6, 2011, deemed from a final judgment of the same court entered January 7, 2011 (see CPLR 5512[a]), and (2) an order of the same court entered February 17, 2011. The final judgment, entered pursuant to the January 6, 2011 order granting landlord's motion for the entry of a final judgment, awarded landlord possession in a holdover summary proceeding. The order entered February 17, 2011 denied tenant's motion for leave to reargue and/or renew her opposition to the prior motion, or, in the alternative, for post-judgment relief.
ORDERED that, on the court's own motion, the appeals are consolidated for the payments, as some were for prepayments.
Tenant's opposition to landlord's motion for the entry of judgment raised triable issues as to the number of tenant's defaults and whether they should be excused as de minimis (see 2246 Holding Corp. v. Nolasco, 52 AD3d 377 ; Sirul Realty Corp. v. Silverstein, 35 Misc 3d 129[A], 2012 NY Slip Op 50633[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; 361 W. 121st Hous. Dev. Fund Corp. v. Frazier, 26 Misc 3d 46 [App Term, 1st Dept 2009]). In the circumstances presented, it was error for the Civil Court to determine landlord's motion without taking sworn testimony or receiving evidence in admissible form (see Matter of Gelrod v. Levine, 24 AD2d 756 ; Mondrow v. Dexter Props., LLC, 34 Misc 3d 131[A], 2011 NY Slip Op 52346[U] [App Term, 1st Dept 2011]). Accordingly, the final judgment is reversed, the order granting landlord's motion for the entry of a final judgment is vacated, and the matter is remitted to the Civil Court for a new determination of landlords motion following a hearing.
Pesce, P.J., Rios and Solomon, JJ., concur.