Great Location NY, Inc. v Seventh Ave. Fine Foods, Inc. (2015 NY Slip Op 50267(U))

Great Location New York, Inc., Petitioner-Landlord-Respondent, -

against

Seventh Avenue Fine Foods, Inc., Respondent-Tenant-Appellant, -and- Momo Laser Hair Removal, Mohammed Hossain d/b/a MH Souvenir & Gift, Respondent.

Tenant, as limited by its brief, appeals from (1) an order of the Civil Court of the City of New York, New York County (James E. d'Auguste, J.), dated May 23, 2014, which denied its preanswer motion to dismiss the petition in a holdover summary proceeding, (2) an order of the same court (Gerald Lebovits, J.), dated August 22, 2014, which denied its motion to dismiss the petition, and granted petitioner's cross motion to dismiss respondent's affirmative defenses and for summary judgment of possession, (3) an order (same court and Judge), dated September 12, 2014, which, upon reargument, amended the August 22, 2014 order as to interest and late fees, and (4) a final judgment (same court and Judge), entered on or about September 16, 2014, awarding petitioner possession and a monetary recovery of $599,520.

Final judgment (Gerald Lebovits, J.), entered on or about September 16, 2014, affirmed, with $25 costs. Appeals from orders dated August 26, 2014 and September 12, 2014 (Gerald Lebovits, J.), and May 23, 2013 (James E. d'Auguste, J.), dismissed, without costs, as subsumed in the appeal from the final judgment.

We agree, essentially for reasons stated by Gerald Lebovits, J. at Civil Court, that landlord demonstrated entitlement to enforce the conditional limitation for nonpayment of rent contained in the governing commercial lease agreement (see Grand Liberte Coop. v Bilhaud, 126 Misc 2d 961 [1984]). The personal affidavit submitted by landlord's president demonstrated, without refutation, that tenant did not pay the specified arrears during the cure period and remained in default - without having sought a Yellowstone injunction - when the lease was terminated after service of a notice of termination.

The motion court properly rejected the technical defenses raised by tenant. As the court [*2]properly recognized, the February 2014 cure and termination notices used by landlord in connection with the prior holdover proceeding against tenant were sufficient to serve as a predicate for the within holdover proceeding brought on the same grounds in April 2014, where the new proceeding was commenced on the same day that the initial proceeding was terminated and where tenant was caused no discernible prejudice (see Arol Dev. Corp. v Goodie Brand Packing Corp., 84 Misc 2d 493, 495-496 [1975], affd 52 AD2d 538 [1976], appeal dismissed 39 NY2d 1057 [1976]).