Appeal from an order of the Civil Court of the City of New York, Queens County (Edgar G. Walker, J.), entered November 24, 2004. The order denied a motion by tenant Chaim Z. Wizman, Esq., and undertenant Taller & Wizman, P.C. to vacate a default final judgment of possession in a holdover summary proceeding.

Order affirmed without costs.

After service of a 30-day notice, landlord instituted this commercial holdover proceeding to recover possession of the subject premises. The petition alleged that
tenant, Chaim Z. Wizman, Esq., had failed to exercise his option to renew the lease and had remained in possession as a month-to-month tenant, which tenancy was terminated by service of the 30-day notice. Y. David Taller, Esq., submitted an answer on behalf of both tenant and undertenant Taller & Wizman, P.C. in which he alleged that his letter to landlord of January 7, 2002 constituted a valid exercise of the option to renew and, as a result thereof, there was a valid lease in effect. Upon the failure by tenant and undertenant Taller & Wizman, P.C. to proceed at trial, an inquest was held and a final judgment of possession was awarded to landlord on default. A subsequent motion by tenant and undertenant Taller & Wizman, P.C. to vacate the final [*2]judgment was denied, and the instant appeal ensued.

To relieve a party from a default (CPLR 5015 [a]), courts require an affidavit by a person with knowledge of the facts that discloses a meritorious claim or defense to the action as well as an adequate excuse for the default. It is not sufficient for the moving papers to merely intone that a claim or defense exists, there must be a showing of sufficient legal merit to warrant vacating the default and permitting a full trial (see DeFazio v Berley Realty Corp., 259 AD2d 266 [1999]).

It is clear from the record that appellants do not have a meritorious defense to the action. Paragraph 64 (A) (3) of the lease states that the only person entitled to exercise the right of renewal is Chaim Z. Wizman, Esq., and specifically excludes any assignee or successor in interest of Chaim Z. Wizman, Esq., from exercising said right of renewal. The letter purporting to exercise the option to renew emanated from undertenant, Taller and Wizman, P.C. and was signed by Y. David Taller, Esq., on behalf of Taller and Wizman, P.C. Since neither Y. David Taller, Esq., nor Taller and Wizman, P.C. was accorded the right under the lease to exercise the option to renew, the lease was not renewed. Accordingly, following expiration of the term of the lease, and the continued payment and acceptance of rent, Chaim Z. Wizman, Esq., became a month-to-month tenant. Thus, landlord's service of the 30-day notice terminated the tenancy and, upon appellants' failure to vacate, landlord properly instituted the instant holdover proceeding.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: February 14, 2007