Petitioner, Granville Payne Realty, LLC, brought this summary holdover proceeding against respondent, P.S. Food Corp. In this motion, P.S. is seeking dismissal of the petition claiming Granville's petition failed to meet the condition precedent of alleging the facts underlying the timely service of the Notice of Default, dated July 31, 2013 and Notice of Termination, dated August 27, 2013.

Respondent's motion is denied, because Hon. Carolyn Demarest, Supreme Court, Kings County, already determined the issue in her decision on a declaratory judgment action brought by P.S. against Granville. (PS Food Corp. v. Granville Payne Retail, LLC, 45 Misc 3d 1216(A) [Sup. Ct., Kings Co., 2014]) The tenant runs a Key Food supermarket at the premises. The underlying default under the lease was that the respondent failed to install an interior fire alarm system. On July 31, 2012, the New York City Fire Department issued a violation to the building's owner because there was no interior fire alarm. The supermarket still operates without the fire alarm system, exposing the public to a dangerous condition.

The holdover petition relied solely on the decision by Hon. Carolyn Demarest in the declaratory judgment action. Petitioner, who does not seek any relief in response to the tenant's [*2]motion, claims the court should deny the motion because Justice Demarest's decision is res judicata as regards the holdover petition.

"A party invoking either the doctrine of res judicata or collateral estoppel must show that the critical issue in the instant action was necessarily decided in the prior action and that the party against whom estoppel is sought has been afforded a full and fair opportunity to contest that issue" (New York Site Development Corp v New York State Dept of Environmental Conservation, 217 AD2d 699 [2nd Dept 1999]).

Justice Demarest indicated that she reviewed the parties' depositions before concluding that the predicate notices were not "invalid". She discussed Ahmad Hakim, respondent's President's deposition acknowledgment that he received the notices from the landlord and failed to act appropriately. Justice Demarest stated " [i]ndeed, Hakim testified that he understood when he received the Notice of Default, that the problem was that he had to install a fire alarm and that he had to cure this problem within a certain time period. He also admitted receiving the Notice of Termination, and that he understood that the Notice of Termination meant that the lease was void " (interior citations omitted)

She also stated section 23.2 of the lease required the "Landlord ... [to] give Tenant a notice of [its] intention to end the term of the Lease if an event of default by the Tenant shall have occurred, and section 26.1 of the lease, under Article 26, entitled "Notice," stated that notice would be effective upon receipt by the Tenant of written notice."

Mr. Hakim admitted he received the predicate notices which were then effective under section 26.1 of the lease. And, in his deposition, reviewed and considered by Justice Demarest, he admitted he received both the Notice of Default and Notice of Termination by "FedEx". That satisfied the overnight mail service requirement of service by overnight mail under the lease's paragraph 26.1.

The predicate notices' service issue was determined by Justice Demarest and is collateral estoppel with regard to this motion. The holdover petition satisfactorily asserted that this issue was previously determined by Judge Demarest. Accordingly, the respondent-tenant's motion to dismiss the holdover proceeding is denied.

Finally, respondent, tenant's application for stay of these proceedings pending determination of its appeal is denied. The application for a stay was previously denied by the Second Department and is without merit.

This is the decision and order of the court.