Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered January 7, 2011. The final judgment, after a nonjury trial, awarded landlord possession and the principal sum of $69,463.20 in a commercial nonpayment summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

In this commercial nonpayment summary proceeding, a final judgment was entered, after a nonjury trial, awarding landlord possession and the principal sum of $69,463.20. On appeal, tenant claims, among other things, that the rent notice was defective and that tenant had been partially actually evicted from the leased premises.

Tenant's first argument is based upon the language in the rent notice requiring tenant to pay the arrears "on or before January 22, 2010 that being at least ten (10) days from the day of the service of this notice . . . ," suggesting that the notice would be served on or before January 12, 2010. Service of the notice was not complete until January 15, 2010. However, tenant did not raise this specific objection in its answer and did not make a pretrial motion to dismiss on this ground. In these circumstances, and since the claimed defect was not jurisdictional (433 W. Assoc. v Murdock, 276 AD2d 360 [2000]; 716 Realty, LLC v Zadik, 38 Misc 3d 139[A] 2013 NY Slip Op 50194[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Rivercross Tenants Corp. v Tsao, 2 Misc 3d 137[A], 2004 NY Slip Op 50254[U] [App Term, 1st Dept 2004]), it provides no basis for reversing the final judgment (see Forest Hills S. Owners, Inc. v Ishida, 33 Misc 3d 141[A], 2011 NY Slip Op 52202[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). In any event, RPAPL 711 (2) does not require the service of a 10-day notice as a predicate to the commencement of a nonpayment proceeding. Nor does tenant contend that there is any provision in the lease which requires the service of a 10-day notice as a predicate to the commencement of a nonpayment proceeding. Indeed, there is no such provision in the lease.

Tenant's defense of partial actual eviction is based, in part, upon language in the lease describing the premises as "approximately 4,000 square feet on the third floor (including areas of the elevator and stairways)" and its inability to use the elevator for extended periods of time during building construction. Tenant specifically argues on appeal that this is not a matter of ingress and egress, but a matter of being ousted from a part of the premises let under the lease. Even assuming that the elevator itself is part of the leased premises, tenant's argument fails, as [*2]the lease also provides that there shall not be "any abatement or diminution of rent because of making of repairs, improvements or decoration to the demised premises after the date above fixed for the commencement of the term." Under these circumstances, tenant is not entitled to an abatement of rent based on its claim of a partial actual eviction due to the unavailability of the elevator (see Cut-Outs, Inc. v Man Yun Real Estate Corp., 286 AD2d 258 [2001], lv denied 100 NY2d 507 [2003]).

Tenant also claims a partial actual eviction because, while the lease rider provides for "two reserved parking spaces in the basement for cars," parking was not accessible as a result of building construction and other activities engaged in by landlord. However, as the lease does not identify two specific parking spaces to which tenant is entitled, tenant's inability to access parking spaces is not a partial actual eviction (see Sulken v Love, 135 Misc 637, 639 [1930]).

Tenant's remaining contention is not properly before this court, as it was raised for the first time on appeal. Accordingly, the final judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 11, 2013