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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Jamsol Realty, LLC v. German, 46 Misc. 3d 11 (2014)

Citation
Jamsol Realty, LLC v. German, 46 Misc. 3d 11 (2014)
Parent Document
Jamsol Realty, LLC v. German, 46 Misc. 3d 11 (2014)
Jurisdiction
New York (state)
Effective Date
2014-10-03

Full Text

1,870 chars
Tenant’s motion to dismiss was predicated, in part, on landlord’s acceptance of rent after the expiration of the lease. As noted above, the record shows that landlord continued to maintain the nonpayment proceeding after the lease had expired on September 15, 2010 and did not commence this holdover proceeding until May 2011. In the nonpayment proceeding, the stipulation executed on September 7, 2010 amended the peti*15tion to include all rents due through September 30, 2010, which is beyond the September 16, 2010 lease expiration date, and landlord was awarded a final judgment for the arrears. By order dated March 21, 2011, the Civil Court stayed execution of the nonpayment warrant through March 31, 2011 for payment of the arrears, which payment was apparently made. Thereafter, according to landlord’s rent ledger, landlord continued to accept bimonthly DSS rent checks in April 2011, before commencing this proceeding in May 2011. As a result of landlord’s acceptance of rents, landlord cannot now claim that no tenancy existed after the September 16, 2010 expiration of the lease. We need not reach the issue of whether tenant was entitled to be served with a 30-day notice, which was not done, or entitled to a renewal lease (see Georgetown Unsold Shares, LLC v Ledet, 35 Misc 3d 137[A], 2012 NY Slip Op 50818[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as, in either case, this proceeding must be dismissed. However, as there was no authority for the Civil Court, upon dismissing the holdover proceeding, to enjoin landlord to re-serve a renewal offer, and to order tenant to sign it, those provisions of the order are stricken (see Tobin v Beaaro, Inc., 31 Misc 3d 127[A], 2011 NY Slip Op 50446[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Topaz Realty Corp. v Morales, 9 Misc 3d 27 [App Term, 2d Dept, 2d & 11th Jud Dists 2005]).