In this ongoing landlord tenant dispute, this is the second time that the landlord has proceeded in Civil Court in an effort to collect past due rent and terminate the plaintiff's commercial lease which commenced in August of 2004. On the first occasion, plaintiff moved for a stay of the proceedings pending the outcome of the instant suit which seeks monetary damages and a judgment reforming the lease. This motion resulted in an order dated September 14, 2005 wherein the plaintiff's motion for a stay of the summary holdover proceedings was granted pending the determination of this action. The instant non-payment proceeding was commenced in Civil Court in May of 2006. It is this proceeding that the plaintiff tenant now seeks to stay.

The controversy arose because the leased premises were not certified for occupancy as a bar- restaurant and such was the use stipulated by the tenant in the lease. According to the complaint, plaintiff-tenant entered into possession in August of 2004. The lease recites that the landlord makes no representations guarantees or acknowledgments that the use designated in the lease by the tenant is permitted on any certificate of occupancy and makes no representation that there exists any certificate of occupancy for the building and obligates the tenant at tenant's sole cost and expense to procure and maintain a certificate of occupancy.

Immediately after taking possession, the plaintiff engaged the services of an architectural firm and a general contractor and after several months the renovations, alterations and improvements were substantially made and the architectural work was performed and finally an expediter was hired to obtain a certificate of occupancy. [*2]

The problem arose because the Building Department would not issue a certificate of occupancy for that portion of the premises that was leased to the plaintiff for use as a bar restaurant because there is an existing certificate of occupancy for the entire premises that allows it to be used as an office and factory. Plaintiff claims that the defendant knew of this restrictive use and that only the defendant can accomplish the issuance of a new certificate of occupancy and that the defendant refuses to do so. As a result the plaintiff cannot get a license for her business and has not according to her affirmation been in occupancy of the premises since October of 2004.

Defendant landlord asserts that plaintiff defaulted in the rent obligations for the period beginning November 1, 2004 until the present. He anticipates that the total fixed rent in arrears through December of 2006 will be $93,100 dollars. The landlord argues that the plaintiff had the opportunity to inspect the premises and conduct all relevant searches prior to executing the lease particularly in light of the fact that a certificate of occupancy is a public document. He therefore claims that she cannot argue that she was persuaded to enter the transaction by fraud or misrepresentation. See CFJ Associates of New York, Inc. v. Hanson Industries, 274 AD2d 892

(3d Dept. 2000).

Significantly, at this juncture the experts retained by both sides appear to agree that a certificate of occupancy for a bar restaurant could be secured. The major difference between the parties on this issue now apparently devolves to the question of who as between the landlord and the tenant is in the better position to procure same.

The Court believes that since more than two years have elapsed with the parties in a stalemate a stalemate which apparently has a resolution— it is imperative that this matter proceed with all due speed.

Accordingly, the plaintiff's motion for a stay of the holdover proceedings is resolved as follows: The stay is granted for a period of thirty days from the date of this order. If this matter has not been placed on the trial calendar by that time, then the stay will continue only upon a demonstration by plaintiff that she has posted security in the amount of fifty thousand dollars ($50,000) and is paying "outstanding and prospective use and occupancy fees" Sportsplex of Middletown, Inc., v. Catskill Regional Off-Track Betting Corp., 221 AD2d 428(2d Dept. 1995)in the amount of three thousand nine hundred and twenty dollars ($3,920) per month commencing on March 9th 2007 and continuing thereafter until this matter has been heard and decided or otherwise resolved.

This constitutes the decision and order of the Court.

J.S.C.