145 E. 16th St. LLC v Spencer

[*1] 145 E. 16th St. LLC v Spencer 2015 NY Slip Op 50312(U) Decided on March 13, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 13, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570121/12

145 East 16th Street LLC, Petitioner-Landlord- Respondent, -

against

Lynore Spencer a/k/a Lenore Spencer, Respondent-Tenant-Appellant, -and- Dana Spencer, David Gerstenhaber, "John Doe," and "Jane Doe," Respondents-Undertenants- Appellants.

Tenant and respondents-undertenants appeal, as limited by their brief, from that portion of an order of the Civil Court of the City of New York, New York County (Sheldon J. Halprin, J.), dated April 12, 2013, which denied their motion for summary judgment dismissing the petition in a holdover summary proceeding and granted landlord's cross motion for partial summary judgment dismissing tenant's third through tenth affirmative defenses.

Per Curiam.

Order (Sheldon J. Halprin, J.), dated April 12, 2013, insofar as appealed from, affirmed, with $10 costs.

We sustain the denial of tenant's dismissal motion. Landlord's commencement and short-lived prosecution of separate, but identical nonpayment proceedings did not nullify the previously served termination notice underlying this 2010 nonprimary residence holdover proceeding (see 1251 Ams. Assoc. II, L.P. v Rock 49th Rest. Corp., 13 Misc 3d 142[A], 2006 NY Slip Op 52282[U] [App Term, 1st Dept 2006]). It need be emphasized that the nonpayment proceedings were commenced after this holdover proceeding was dismissed on tenant's motion, but prior to this Court's reversal of the dismissal order and reinstatement of the holdover petition (see 145 E. 16th St. LLC v Spencer, 36 Misc 3d 128[A], 2012 NY Slip Op 51199[U] [App Term, 1st Term 2012]); and the nonpayment proceedings were either discontinued by landlord or [*2]dismissed without prejudice by the court (see Bridge Hardware Co. v. Disosway & Fisher, 199 Misc 259 [1950], affd 278 App Div 812 [1951]). Given landlord's continued prosecution of its (ultimately successful) appeal from the dismissal order, it cannot reasonably be said that landlord intended to, or did, reinstate the tenancy. The creation of a landlord-tenant relationship "only arises from a legitimate manifestation of intent on the part of the parties to create such a relationship" (Coleman v Dabrowski, 163 Misc 2d 763, 765 [1994]), and "should not be reduced to a matter of gamesmanship, seduction and artifice" (id.), or be made to hinge on "gotcha" litigation tactics (see FS 41-45 Tiemann Place LLC v Estrella, 38 Misc 3d 29, 30 [2012]).

Nor in the particular circumstances of this case, and the parties' extensive and combative litigation history, has tenant shown that she was misled in any way by the commencement of the nonpayment proceedings (see Rockaway One Co. v Califf, 194 Misc 2d 191, 193 [2002]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 13, 2015