| 1009 Second Ave. Assoc. LLC v Caf‚ Buon Gusto Cinque Corp. |
| 2008 NY Slip Op 51405(U) [20 Misc 3d 129(A)] |
| Decided on July 16, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Landlord appeals from a final judgment of the Civil Court of the City of New York, New
York County (Matthew F. Cooper, J.), entered May 8, 2007, after a nonjury trial, which
dismissed the petition in a commercial holdover summary proceeding.
Per Curiam.
Final judgment (Matthew F. Cooper, J.), entered May 8, 2007, affirmed, with $25 costs.
We find no basis to disturb the trial court's expressed factual findings that tenant tendered, and landlord improperly rejected, the disputed rent for the months of December 2006 and January 2007, and thus sustain the court's ultimate determination that the default provisions of paragraph 44H of the governing commercial lease agreement were not triggered. By failing to request that the court draw an adverse inference due to tenant's failure to produce the disputed rent checks, landlord failed to preserve that issue for our review (see Williams v State, 254 AD2d 749 [1998]; Rochester Gas & Elec. Corp. v State, 225 AD2d 1047 [1996]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 16, 2008