1894 Eastchester Professional Bldg., Ltd. v Christopher

[*1] 1894 Eastchester Professional Bldg., Ltd. v Christopher 2015 NY Slip Op 51481(U) Decided on October 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 7, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
&em;

1894 Eastchester Professional Building, Ltd., Petitioner-Landlord-Respondent, - 570605/15

against

Gerald Christopher d/b/a Good To Go Restaurant, Respondent-Tenant-Appellant.

Tenant, as limited by his briefs, appeals from (1) an order of the Civil Court of the City of New York, Bronx County (Eddie J. McShan, J.), entered November 17, 2014, which denied his motion to dismiss the petition in a holdover summary proceeding, and (2) those portions of an order (same court and Judge), dated March 30, 2015, which denied his motion to renew and reargue the aforesaid order, and granted landlord's cross motion for summary judgment of possession.

Per curiam.

Order (Eddie J. McShan, J.), dated March 30, 2015, modified to deny landlord's cross motion for summary judgment of possession; as modified, order affirmed, without costs. Appeal from order (Eddie J. McShan, J.) entered November 17, 2014, dismissed, without costs, as abandoned.

While the motion court purported to deny tenant's motion for reargument, the merits of the motion were addressed and the court, in effect, granted reargument, even though it ultimately adhered to its original determination (see Jackson v Leung, 99 AD3d 489, 490 [2012]; Matter of State Farm Mut. Auto. Ins. Co. v King, 304 AD2d 390 [2003]). Thus, the March 30, 2015 order is appealable.
Turning to the merits, Civil Court correctly denied tenant's motion to dismiss the underlying commercial holdover proceeding. Tenant's claim of waiver, based upon landlord's acceptance of rent for the months of June and July 2014, was correctly rejected. The June 2014 rent was accepted pursuant to the terms of the parties' August 26, 2013 stipulation in the related Yellowstone action, thereby negating any inference that landlord waived the prior termination of the lease (see Sharp v Stavisky, 242 AD2d 447 [1997], lv dismissed 91 NY2d 956 [1999]). Nor did the acceptance of the July 2014 rent after this holdover proceeding was commenced constitute a waiver (see RPAPL 711[1]; Oppenheim v Spike, 107 Misc 2d 55 [1980]). Tenant's claim that landlord's acceptance of July 2013 rent constituted a waiver, an argument raised for the [*2]first time in tenant's renewal motion, was properly rejected (see Marino v Brown, 225 AD2d 529 [1996]).

Tenant's argument regarding the absence of the affidavit of service of the notice of cancellation was not raised below. "This is clearly a matter that could have been resolved by the submission of documentary evidence, obviating consideration of the issue by the court, and it may not therefore be raised for the first time on appeal" (P.T. Bank Cent. Asia v Chinese Am. Bank, 229 AD2d 224, 229 [1997]). We also note that the issue of the sufficiency of the predicate notices, decided adversely to tenant by Supreme Court, has been abandoned on this appeal.

We agree with tenant, however, that landlord's cross motion for summary judgment of possession should have been denied. Tenant's breach of the lease was not conclusively established on this record. The Supreme Court determination denying tenant's application for Yellowstone relief - on the procedural ground that the action was untimely commenced after the time to cure expired and the lease was terminated - did not constitute an adjudication on the merits that tenant defaulted under the lease (see 875 W. 181 Owners Corp. v KB Gallery, LLC, 124 AD3d 549 [2015]; Matter of 251 Main St. Corp. v Christine's Shoes Corp., 267 AD2d 415 [1999]). Although Supreme Court's decision also indicated that tenant's Yellowstone application "neglected to rebut" the allegations in the notice to cure that he breached the lease by making an improper use of outdoor space, "this was merely dictum wholly unnecessary to [Supreme] Court's holding" (Sahn v AFCO Indus., 192 AD2d 480 [1993]; see Adam v Cutner & Rathkopf, 238 AD2d 234, 242 [1997]). Indeed, once Supreme Court determined that the Yellowstone application was untimely, the "merits of the alleged [lease] defaults . . . [became] irrelevant" (King Party Ctr. of Pitkin Ave. v Minco Realty, 286 AD2d 373, 375 [2001]). Moreover, insofar as Supreme Court's finding as to the outdoor space was an alternative ground on which its decision was predicated, the limited record now before us does not contain the pleadings in the Yellowstone action, and only contains a small portion or the evidence that was before Supreme Court. Therefore, we cannot determine whether the doctrine of collateral estoppel is properly applied to the purported alternative determination (Malloy v Trombley, 50 NY2d 46 [1980]), i.e., whether the issue of tenant's use of the outdoor space "was fully litigated [in Supreme Court], and [tenant] had full opportunity to be heard [on the issue] and was in no way, motivationally or procedurally, restricted or inhibited in the presentation of his position" (id. at 52-53).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concurI concur
Decision Date: October 07, 2015