Levin v Brust
2023 NY Slip Op 23287 [80 Misc 3d 13]
Accepted for Miscellaneous Reports Publication
Supreme Court, Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, November 22, 2023


[*1]
Joel Levin, as Successor Trustee for Arnold Goldstein, as Trustee of Trust for the Benefit of Shari Lynn Goldstein and Another, Respondent,
v
Marilyn Brust, Appellant.

Supreme Court, Appellate Term, First Department, September 26, 2023

Levin v Brust, 2023 NY Slip Op 33760(U), reversed.

APPEARANCES OF COUNSEL

Charles Small, New York City, for appellant.

Jordan M. Hyman, Rockville Centre, for respondent.

{**80 Misc 3d at 14} OPINION OF THE COURT
Per Curiam.

Order (Karen May Bacdayan, J.), dated January 25, 2023, insofar as appealed from, reversed, with $10 costs, tenant's cross-motion granted and the petition dismissed. Appeal from order (Karen May Bacdayan, J.), dated October 6, 2022, dismissed as academic.

Civil Court should not have treated tenant's cross-motion for summary judgment as a motion for leave to reargue a prior order denying tenant's pre-answer motion to dismiss pursuant to CPLR 3211 (a). "[T]here is nothing which prevents a motion for summary judgment from being made on the same ground which had earlier been advanced in a motion to dismiss" (Tapps of Nassau Supermarkets v Linden Blvd., 269 AD2d 306, 307 [1st Dept 2000]; see Ancrum v St. Barnabas Hosp., 301 AD2d 474, 475 [1st Dept 2003]).

On the merits, tenant's cross-motion for summary judgment dismissing the nonprimary residence holdover petition should have been granted. Landlord's offer to renew the rent-stabilized lease on December 16, 2019, timely accepted by tenant, created an enforceable lease agreement, notwithstanding landlord's service of a notice of nonrenewal on December 26, 2019 (see Isaly-Liceaga v Pickarski, 63 Misc 3d 154[A], 2019 NY Slip Op 50802[U] [App Term, 1st Dept 2019]; 123 W. 15, LLC v Compton, 4 Misc 3d 138[A], 2004 NY Slip Op 50938[U] [App Term, 1st Dept 2004]; Hakim v Muller, 2002 NY Slip Op 50339[U] [App Term, 1st Dept 2002]; Herman v Meryn, NYLJ, July 29, 1994 at 21, col 1 [App Term, 1st Dept 1994]). "The fact that the {**80 Misc 3d at 15}landlord may not have intended the proposed lease . . . to constitute a binding offer is immaterial because the statute requires that the offer be binding" (Matter of East 56th Plaza v New York City Conciliation & Appeals Bd., 56 NY2d 544, 546 [1982]; see Jacreg Realty Corp. v Barnes, 284 AD2d 280, 280-281 [1st Dept 2001]).

We reject landlord's contention that the subject renewal lease is unenforceable because it lists an allegedly nonexistent entity, i.e., "16 Park Ave" as "Owner." Landlord identified itself in the renewal lease it admittedly tendered as "16 Park Ave," the same entity identified as owner in the prior (2018) renewal lease signed by the parties, and landlord's correspondence instructed tenant to make all rent checks payable to the "building entit[y]," one "16 Park Avenue LLC." In the circumstances, landlord cannot escape liability by now disavowing 16 Park Ave (see Gotthelf v Shapiro, 136 App Div 1, 3 [2d Dept 1909]; see also David v Williamsburgh City Fire Ins. Co., 83 NY 265, 268-269 [1880]).

Hagler, P.J., Brigantti and James, JJ., concur.