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1251 Ams. Assoc. II, L.P. v Rock 49th Rest. Corp.
2006 NY Slip Op 52282(U) [13 Misc 3d 142(A)]
Decided on November 29, 2006
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on November 29, 2006
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McCOOE, J.P., GANGEL-JACOB, SCHOENFELD, JJ
.

1251 Americas Associates II, L.P. f/k/a 1251 AMERICAS ASSOCIATES, L.P., Petitioner-Landlord-Appellant, No.570075/06

against

Rock 49th Rest. Corp. d/b/a CITY LOBSTER & CRAB CO., Respondent-Tenant-Respondent, "JOHN DOE", "JANE DOE" and "R. DOE, INC.", 1251 AVENUE OF THE AMERICAS, NEW YORK, NY 10019, Respondents.


Landlord appeals from an order of the Civil Court, New York County (Jose A. Padilla, Jr., J.), entered on or about June 9, 2005, which granted tenant's motion to dismiss the petition pursuant to CPLR 3211(a)(1) in a holdover summary proceeding.


Per Curiam:

Order (Jose A. Padilla, Jr., J.), entered on or about June 9, 2005, reversed, with $10 costs, motion denied, petition reinstated and matter remanded to Civil Court for further proceedings.

Landlord's acceptance of tenant's tender of the April 2005 rent on April 6, 2005 did not vitiate the notice terminating the commercial tenancy as of April 5, 2005. Since the governing lease required tenant to pay rent "in advance on the first day of each calendar month," tenant was obligated to pay rent for the entire month, even though the lease was terminated as of April 5, 2005 (see Intell 157 W. 57th St. Realty v Block Travel, 2002 NY Slip Op 50058[U]). Nor did the brief pendency of the nonpayment proceeding - discontinued on consent on April 11, 2005 - nullify the previously served termination notice underlying the within holdover proceeding (cf. Zitomer Pharmacy v MacFarlane 64th St. Dev. Corp., 191 AD2d 333 [1993]).

This constitutes the decision and order of the court.
I concur I concur I concur [*2]
Decision Date: November 29, 2006