Felipe E. Orner, for appellant. Queens Legal Services, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Enedina Pilar Sanchez, J.), entered November 1, 2023. The order granted tenant's motion for summary judgment dismissing the petition, denied, as moot, the branch of landlord's cross-motion seeking use and occupancy, and denied, on the merits, the branch of the cross-motion seeking sanctions in a holdover summary proceeding.

ORDERED that the order is modified by vacating so much thereof as granted tenant's motion for summary judgment dismissing the petition and denied the branch of landlord's cross-motion seeking use and occupancy, and by providing that tenant's motion is denied, and the matter is remitted to the Civil Court for a determination on the merits of the branch of landlord's cross-motion seeking use and occupancy; as so modified, the order is affirmed, without costs.

While the trial of this holdover proceeding was ongoing, landlord served two rent demands, approximately two months apart, and tenant moved for summary judgment dismissing the petition, arguing that service of the rent demand vitiated the notice of termination. Landlord cross-moved for use and occupancy, and sanctions, based on tenant's alleged delays and frivolous motions. The Civil Court (Enedina Pilar Sanchez, J.) granted tenant's motion, denied the branch of landlord's cross-motion seeking sanctions, and denied, as moot, the branch of landlord's cross-m[*2]otion seeking use and occupancy.

Actions taken by a landlord after service of a notice of termination, but before the commencement of a holdover proceeding, such as the acceptance of rent, can be treated as evidence of an intent to reinstate the tenancy and thereby vitiate a termination notice (see 92 Bergenbrooklyn, LLC v Cisarano, 50 Misc 3d 21 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Guy v Furman, 4 Misc 2d 564 [App Term, 1st Dept 1956]). However, RPAPL 711 (1) specifically states that "[a]cceptance of rent after commencement of [a holdover proceeding] shall not terminate such proceeding." While service of a rent demand is arguably stronger evidence of an intent to recognize a tenancy than the acceptance of rent, even the commencement of a nonpayment proceeding—which "must be predicated on an existing unexpired agreement to pay rent" (Shahid v Carillo, 18 Misc 3d 136[A], 2008 NY Slip Op 50278[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; see RPAPL 711 [2])—will not necessarily vitiate a termination notice (see Rockaway One Co. v Califf, 194 Misc 2d 191 [App Term, 2d Dept, 2d & 11th Jud Dists 2002]; see also 72nd St. Assoc., LLC v Persson, 47 Misc 3d 126[A], 2015 NY Slip Op 50345[U] [App Term, 1st Dept 2015]). It is the entry of a final judgment in such a nonpayment proceeding which "conclusively establishe[s] that the tenancy continued to exist or was reinstated after the service of" a notice of termination, thereby vitiating that notice (Shahid v Carillo, 2008 NY Slip Op 50278[U], *1). Under the circumstances presented, service of the rent demands during the course of an ongoing trial did not "vitiate this holdover proceeding or mislead tenant to her prejudice" (72nd St. Assoc., LLC v Persson, 2015 NY Slip Op 50345[U], *2).

Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion in denying the branch of landlord's cross-motion seeking the imposition of sanctions (see Rules of Chief Admr of Cts [22 NYCRR] § 130-1.1). The branch of landlord's cross-motion seeking use and occupancy, which the Civil Court had denied as moot, must now be considered.

Accordingly, the order is modified by vacating so much thereof as granted tenant's motion for summary judgment dismissing the petition and denied the branch of landlord's cross-motion seeking use and occupancy, and by providing that tenant's motion is denied, and the matter is remitted to the Civil Court for a determination on the merits of the branch of landlord's cross-motion seeking use and occupancy.

BUGGS and OTTLEY, JJ., concur.

MUNDY, J.P., taking no part.