Appeal from a final judgment of the Justice Court of the Town of Clarkstown, Rockland County (Victor J. Alfieri, Jr., J.), entered June 30, 2005, and from a warrant issued pursuant thereto on the same date. The final judgment awarded landlord possession in a holdover summary proceeding. The warrant directed the sheriff to deliver possession to landlord. The appeal from the final judgment brings up for review an order incorporated therein denying tenant's motion to dismiss the proceeding.

Final judgment affirmed without costs.

Appeal from warrant dismissed on the ground that no appeal lies therefrom (see UJCA 1702).
In this commercial holdover proceeding, the verified petition, returnable May 17, 2005, alleges that landlord, acting pursuant to the terms of the lease, served tenant with a notice requiring tenant to relocate to a different space in the shopping center; that tenant failed to accept the relocation within the time specified in the notice; and that landlord thereupon served a termination notice upon tenant. Tenant appeared by counsel on the return date of the petition but did not answer on said date. The court directed tenant to answer by May 24, 2005 and set the trial date for June 9, 2005. Tenant did not answer by May 24, 2005 but moved, by notice of motion returnable June 20, 2005 (although CPLR 406 requires that such a motion be noticed to be heard at the time the petition is noticed to be heard), to dismiss the proceeding on the ground that landlord's notices to relocate and to terminate were deficient because they were issued by an entity other than landlord, to wit, Pyramid Management Group, Inc. (Pyramid). In opposition, [*2]landlord showed that the lease expressly provided that landlord's managing agent could issue notices and that tenant knew, from a documented course of dealings with Pyramid, including a repayment agreement executed by tenant and Pyramid, that Pyramid was landlord's managing agent.

In our view, the Justice Court correctly determined, based on the documented course of dealings between tenant and Pyramid, that tenant had no basis to doubt Pyramid's authority to bind landlord, and tenant is charged with knowledge of Pyramid's authority (see 154-55 Street Co. v Torres, 171 Misc 2d 237 [App Term, 1st Dept 1997]). Tenant's claim that it believed that Pyramid was merely landlord's "revenue agent" is insufficient under the circumstances to raise a triable issue of fact. In addition, we see no merit in tenant's contention on appeal that the clause permitting landlord to terminate the lease upon 15 days' notice established a condition subsequent rather than a conditional limitation (see Miller v Levi, 44 NY 489 [1871]; 2 Dolan, Rasch's Landlord and Tenant — Summary Proceedings § 23:28 [4th ed]). Finally, since the record fails to disclose that tenant demonstrated the existence of any genuine issues of fact, and in view of tenant's failure to timely answer, it was not an improvident exercise of discretion for the court to award judgment to landlord without allowing tenant a further opportunity to interpose an answer (CPLR 404 [a]; 409 [b]; see Matter of Dodge, 25 NY2d 273, 286-287 [1969]; Matter of Lefkowitz v Therapeutic Hypnosis, 52 AD2d 1017 [1976]; Fisher Ave. Realty Partners v Hausch, 186 Misc 2d 609 [App Term, 9th & 10th Jud Dists 2000]).

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: July 26, 2006