171 No. Pascack Rd. Corp. v A Nu U Injectables, LLC

Appellate Term of the Supreme Court, Appellate Term, Second Department, 9th And 10th Judicial Districts

Decided on July 29, 2025

2024-370 RO C

Present: : Gretchen Walsh, J.P., Elena Goldberg-Velazquez, Joseph R. Conway, JJ

Feerick Nugent MacCartney, PLLC (Donald J. Feerick, Jr. of counsel), for appellant. Condon Paxos, PLLC (Brian K. Condon of counsel), for respondent.

Appeal from an order of the Justice Court of the Town of Clarkstown, Rockland County (Leslie Kahn, J.), dated February 29, 2024. The order denied landlord's motion for summary judgment in a holdover summary proceeding.

ORDERED that the order is affirmed, without costs, and, upon searching the record, summary judgment is awarded to tenant dismissing the petition.

In this commercial holdover proceeding, landlord moved for summary judgment based on its termination of the lease on the ground that tenant had failed to cure certain violations within the cure period provided by the notice to cure. Tenant opposed the motion arguing, among other things, that the predicate notices were defective in that they were vague and failed to inform tenant how it had violated the lease or of the conduct that would be required to prevent eviction. By order entered February 29, 2024, the Justice Court (Leslie Kahn, J.) denied landlord's motion on the ground that material issues of fact precluded an award of summary judgment.

Here, the notices were unreasonably vague under the attendant circumstances (see Oxford Towers Co., LLC v Leites, 41 AD3d 144 [2007]; Hughes v Lenox Hill Hosp., 226 AD2d 4 [1996]) and, thus, were insufficient to permit tenant to prepare a defense. Contrary to landlord's argument on appeal, the bare denial by the Supreme Court, Rockland County (Paul I. Marx, J.), of an application for a Yellowstone injunction made by A Nu U Injectables, LLC, tenant herein, in a separate plenary action against it and its principal, does not preclude tenant's argument in the instant case regarding the facial insufficiency of the predicate notices (see PS Food Corp. v Granville Payne Retail, LLC (45 Misc 3d 1216[A], 2014 NY Slip Op 51601[U] [Sup Ct, Kings County 2014], affd 140 AD3d 1046 [2016]).

As it is proper to dismiss the petition under these circumstances (see Chinatown Apts. v [*2]Chu Cho Lam, 51 NY2d 786 [1980]), we search the record and award tenant summary judgment dismissing the petition (see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]).

Accordingly, the order is affirmed, and, upon searching the record, summary judgment is awarded to tenant dismissing the petition.

WALSH, J.P. and GOLDBERG-VELAZQUEZ, J., concur.

CONWAY, J., taking no part.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: July 29, 2025