Upon a reading of the foregoing cited papers it is the decision and order of this court that the motion for summary judgment is denied the cross motion is granted and the petition is dismissed.

Petitioner brings this motion for summary judgment requesting that the court [*2]issue an order awarding possession, a warrant of eviction, ordering respondent to pay use and occupancy and order a hearing on attorney's fees. Respondent cross moves for an order dismissing the petition on the grounds that the premises is a defacto multiple dwelling for which there is no certificate of registration, thus precluding petitioner from obtaining rent and divesting this court of jurisdiction. In its reply papers to petitioner's opposition to its cross motion respondent raises as an additional ground for summary judgment that the notice of termination was vitiated and the tenancy reinstated when petitioner accepted rent from respondent, subsequent to the service of the notice of termination and prior to the initiation of this summary holdover proceeding (this was raised by respondent as its third affirmative defense in its answer).

In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact (Klein v. City of New York, 89 NY2d 833; Ayotte v. Gervasio, 81 NY2d 1062, Alvarez v. Prospect Hospital, 68 NY2d 320). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence, in admissible form, sufficient to require a trial Amatulli v. Delhi Constr. Corp. fo material factual issues (Kaufman v. Silver, 90 NY2d 204; ,77 NY2d 525; Iselin & Co. v. Mann Judd Landau, 71 NY2d 420). In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party (SSBS Realty Corp. v. Public Service Mut. Ins. Co., 253 AD2d 583; Martin v. Briggs, 235 192).[*3]

Petitioner has submitted the affidavit of Shimon Milul, a principal in petitioner landlord in support of its motion. Mr. Milul avers that he was unaware that the premises were being utilized for residential purposes and that the tenants illegally converted "commercial" premises to residential premises without the landlord's knowledge or acquiescence. In response, respondents submit the affidavit of Maria Nazor to show that petitioner was fully aware and consented to the residential use of the premises, therefore creating the defacto multiple dwelling. However,the absence of a multiple dwelling registration statement is not a bar to the recovery of possession in the context of a holdover proceeding. Proof that a building is currently registered as a multiple dwelling is not an element of a holdover cause of action ( Czerwinski v. Hayes, 8 Misc 3d 89 [App. Term 2nd. Dept.]; Chopra v. Parkin, 7 Misc 3d 133(A) [App. Term 2nd. Dept.]; Bouwerie Lane Corp., v. Black, 12 Misc 3d 132(A)[ App. Term 1st. Dept. 2006]).

"The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds or evidence for the motion" (Kennelly v. Mobius Realty Holdings LLC, 2006 WL 2864420[ A.D. 1st. 2006] Quoting Dannasch v. Bifulco, 184 AD2d 415 [1992]). Although this rule is not inflexible (Kennelly, Supra; Anderson v. Beth Israel Med. Center, 31 AD3d 284, 819 NYS2d 241, 2006 Slip Op. 05722[ A.D.1st. 2006]), In the context of summary judgment a fundamental deficiency in the moving papers may not be remedied by submitting evidentiary material with the reply.

( See Ritt by Ritt v. Lenox Hill Hosp., 182 AD2d 560 [A.D. 1st. 1992]; Migdol v. City of New York, 291 AD2d 201, 737 NYS2d 78, 2002 NY Slip Op. 01030 [A.D. 1st. 2002]; Sanford V. 27-29 W. 181 St. Association, Inc., 300 AD2d 250, 753 NYS2d 49, 2002 NY Slip Op. 11103 [A.D. 1st. 2002]). However, the court's denial of an application to strike the reply papers is discretionary ( Gateway Detroit Associates, L.L.C., v. Witkoff Group, 297 AD2d 215, 746 NYS2d 283 [1st. Dept. 2002]; Held v. Kaufman, 91 NY2d 425, 694 NE2d 430, 671 NYS2d 429 [1998]). On a motion for summary judgment a court may search the record and if warranted grant summary relief, even in the absence of a cross motion ( Friedman v. Carey Press Corp., 117 AD2d 568, 498 NYS2d 839 [1st. Dept. 1986]).

Acceptance of rent after the date set for termination in the termination notice but prior to the commencement of the holdover proceeding reinstates the tenancy and waives the notice to terminate ( Associated Realties v. Brown, 146 Misc 2d 1069, 554 NYS2d 976 [N.Y.City Civ. Court 1990]; Cadim Stonehedge 56th St. Assoc. LP v. Blue, N.Y.L.J. 22:2[App. Term 1st. Dept. 8/29/2000]; Vendone v. Tasoulis, N.Y.L.J. 23:5 [App. Term 2nd. & 11th. Jud. Dists. 2/2/94]; Residential Landlord Tenant Law in New York, 2007 Edition §11:12). In accordance with the termination notice the tenancy was terminated on July 31,2006. Rent for the month of August was tendered and accepted on August 10, 2006. Respondent was served with the Notice of Petition and Petition in this holdover proceeding on August 15, 2006.[*4]

Respondents raised as their third affirmative defense in their answer the issue of the vitiation of the notice of termination. The third affirmative defense states.." 6. Prior to the initiation of this proceeding, petitioner or its agents accepted rent from respondent and engaged in other conduct consistent with the creation, continuation, reinstatement and ratification of the landlord-tenant relationship between petitioner and respondent.

7. Petitioner has therefore vitiated its purported notice of termination of tenancy and waived any right it may have had to terminate respondent's interest in the premises." Respondents have alluded to their answer in opposing petitioner's motion for summary judgment and in support of their cross motion for summary judgment [See affidavits of Maria Nazor in Cross moving papers and in reply].

Since the issue of the vitiation of the notice of termination was raised as an affirmative defense in the answer, and petitioner was aware of this defense, it is proper for this court to search the record and not only deny petitioner summary judgment, but also grant respondents summary judgment based on this defense ( Loral Realty v. Beauty Development Corp., 114 Misc 2d 541, 454 NYS2d 362[ App. Term 2nd. & 11th. Jud. Dists. 1982]; Lee v. City of Rochester, 254 AD2d 790, 677 NYS2d 848 [4th Dept. 1998]).

Accordingly, for the foregoing stated reasons, Petitioner's motion for summary judgment is denied, Respondents' cross motion for summary judgment is granted and the petition is dismissed.

This constitutes the decision and order of this court.

Dated: January 19, 2007[*5]