Tenant, as limited by its briefs, appeals from those portions of an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), dated April 2, 2013, which denied its motion to renew its prior motion for summary judgment dismissing the holdover petition and granted landlord's cross motion to dismiss tenant's third affirmative defense and for summary judgment of possession.

Per Curiam.

Order (Andrea Masley, J.), dated April 2, 2013, insofar as appealed from, modified by denying those branches of landlord's cross motion which were to dismiss tenant's third affirmative defense and for summary judgment of possession, and vacating the court's directive for a hearing on landlord's application for attorneys' fees and use and occupancy; as modified, order affirmed, without costs.

This holdover summary proceeding, seeking enforcement of the conditional limitation provision of the governing commercial lease agreement, is not ripe for summary disposition. As a threshold matter, the court erred in granting petitioner-landlord's cross motion insofar as it sought to strike tenant's third affirmative defense based on a putative "lack of merit" and "fail[ure] to state [a] valid defense[]" to the petition. The answer, coupled with the affidavit submitted below by tenant's president (see Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]), sufficiently stated a viable equitable estoppel defense (see Grunder v Recckio, 138 AD2d 923, 923-924 [1988]) and petitioner failed in its burden of demonstrating that the defense is without merit as a matter of law (see Greco v Christoffersen, 70 AD3d 769, 771 [2010]). As to summary judgment, landlord similarly failed to meet its burden to eliminate all triable issues of fact respecting the (extant) affirmative defense of equitable estoppel. Affording tenant the benefit of every favorable inference (see Ortega v Everest Realty LLC, 84 AD3d 542, 545 [2011]), we find the record evidence - particularly the interplay between the June 1, 2010 notice of attornment confusingly drafted by petitioner's immediate predecessor and the payment terms of the May 2008 order issued in the related Supreme Court action between the parties - sufficient to raise triable issues as to whether, as alleged, the tenant's isolated July 2010 rent default here complained of resulted from a genuine uncertainty as to which of the two ownership entities [*2]designated in the attornment notice was authorized to collect the rent payment in question. Tenant's remaining arguments are either unpreserved for appellate review or without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 11, 2014