Magal Props. LLC v Gritsyk

[*1] Magal Props. LLC v Gritsyk 2015 NY Slip Op 51651(U) Decided on November 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
15-406

Magal Properties LLC, Petitioner-Appellant,

against

Peter Gritsyk, Respondent-Tenant-Respondent, - and - Klaudia Gritsuyk, John Doe and Jane Doe, Respondents-Undertenants.

Landlord, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Cheryl J. Gonzales, J.), dated September 11, 2014, which, inter alia, granted tenant's motion to dismiss the petition.

Per Curiam.

Order (Cheryl J. Gonzales, J.), dated September 11, 2014, affirmed, with $10 costs.

We agree, essentially for reasons stated by Civil Court, that this holdover summary proceeding was time barred, since the alterations underlying landlord's claim were completed in 1996, more than 16 years prior to the commencement of this proceeding in November 2013 (see Barklee 94 LLC v Oliver, 124 AD3d 459 [2015]; Barklee 94 LLC v O'Keefe, 18 Misc 3d 134[A], 2008 NY Slip Op 50178[U][2008]; see also Westminster Props. v Kass, 163 Misc 2d 773 [1995]). We also reject landlord's attempt to cast this proceeding in "nuisance" - defined as "a pattern of continuity or recurrence of objectionable conduct" (Domen Holding Co. v Aranovich, 1 NY3d 117, 124 [2003], quoting Frank v Park Summit Realty Corp., 175 AD2d 33, 34 [1991], modified on other grounds 79 NY2d 789 [1991]) - to avoid the consequences of predecessor landlord's express written consent to alterations performed by tenant nearly two decades ago. Landlord is bound by the predecessor landlord's express written consent to the alterations (see 52 Riverside Realty Co. v Ebenhart, 119 AD2d 452 [1986]), which served to preclude its claim (see Haberman v Hawkins, 170 AD2d 377, 378 [1991]; 106 & 108 Charles, LLC v Hohn, 96 AD3d 511 [2012]; El-Kam Realty Co. v Epstein, 148 Misc 2d 835 [1990]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur concur

Decision Date: November 19, 2015