Rubin v Academy Props. Ltd. Partnership

[*1] Rubin v Academy Props. Ltd. Partnership 2005 NY Slip Op 51624(U) [9 Misc 3d 132(A)] Decided on October 7, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 7, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: SUAREZ, P.J., DAVIS, SCHOENFELD, JJ.


04-273-274L. Robert Rubin and Marilyn S. Back, Petitioners-Landlords-Respondents, NY County Clerk's #570411/04

against

Academy Properties Limited Partnership, Respondent-Tenant-Appellant, Cheryl Importing Co., Ltd., JLM Group Ltd., Bijou International Corp., Bijoux Design, Inc., Plastic Methods Co., Inc., DSC International Inc., Design 2000 NY, Ltd., Bead House, Inc., Page D., Inc., Cinar Manufacturing Co., Classic Time Watch Co., United Parcel Service, Kenneth J. Lane, Inc., and "XYZ Corp. #1 through #100," Respondents.

Tenant appeals 1) from an order of the Civil Court, New York County, entered September 4, 2003 (Martin Shulman, J.), which, upon renewal, granted landlords' motion for summary judgment on the holdover petition, denied tenant's cross motion to dismiss and set the matter down for a hearing on the issue of use and occupancy, and 2) from an order of the same court entered December 15, 2003 (Paul G. Feinman, J.), which denied its motion to limit the use and occupancy award to the period ending August 15, 2001.

PER CURIAM:

Orders entered September 4, 2003 (Martin Shulman, J.) and December 15, 2003 (Paul G. Feinman, J.) affirmed, with $10 costs.

Landlords established their right to possession in this commercial holdover proceeding. The doctrine of res judicata barred the tenant from relitigating the central issue underlying this dispute, namely, whether the landlords had ratified the numerous subleases beyond the January 31, 2000 expiration of the main lease, inasmuch as that question was fully litigated and resolved against the tenant in arbitration (see Protocom Devices v Figueroa, 173 AD2d 177, 178 [1991]), with the limited exception of two subleases covering the second and fourth floors of the building. Moreover, the subtenants continued to assert possessory claims following the expiration of the main lease term and during the stay of issuance of the warrant while that issue was being litigated (see Gale P. Elston, P.C. v Dubois, 18 AD3d 301 [2005]). Having failed to discharge its leasehold obligation to remove its numerous subtenants at the expiration of the lease term (see Stahl Assoc. Co. v Mapes, 111 AD2d 626, 629 [1985]), the tenant remained responsible for the remaining subtenants for the entire holdover period, from February 1, 2000 until August 18, 2003, when the landlords' motion for summary judgment was decided (see generally Fisher Ave. [*2]Realty Partners v Hausch, 186 Misc 2d 609 [2000]).

We have considered the tenant's remaining arguments and find them lacking in merit.

This constitutes the decision and order of the court.
Decision Date: October 07, 2005