87-10 51st Avenue Owners Corp. v Weatherly

[*1] 87-10 51st Avenue Owners Corp. v Weatherly 2004 NY Slip Op 51114(U) Decided on October 1, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., ARONIN and PATTERSON, JJ.
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87-10 51st AVENUE OWNERS CORP, Appellant,

against

ALBERT WEATHERLY, Respondent.

Appeal by landlord from an order of the Civil Court, Queens County (A. Agate, J.), dated September 4, 2003, which dismissed its commercial holdover petition.

Order unanimously reversed without costs, petition reinstated and matter remanded to the Civil Court for entry of a final judgment awarding landlord possession.

The lease between landlord and tenant provides that tenant will use the subject premises for a "professional office only." Landlord commenced the instant holdover proceeding, claiming that tenant's use of the subject premises as a flute repair shop violated the terms of the lease and the building's certificate of occupancy.

As the language in the lease is clear and unambiguous, extrinsic evidence as to whether, prior to execution of the lease, the parties may have contemplated the subject premises being used as a flute repair shop may not be considered (see Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]; Matter of Wallace v 600 Partners Co., 86 NY2d 543, 548 [1995]; 1099 Second Ave. Assocs. v New York City Off-Track Betting Corp., 248 AD2d 106, 107-108 [1998]). Inasmuch as tenant failed to present any evidence of specialized or long-term training or a license which would qualify him as a "professional person" within the common meaning of the term (see Matter of Geiffert v Mealey, 293 NY 583, 586 [1944]; Matter of Schonbrun v Board of Zoning Appeals of Town of N. Hempstead, 239 AD2d 508 [1997]), tenant's use of the premises violated the provision of the lease which required that the subject premises be used as a professional office. Moreover, tenant's use is also contrary to the certificate of occupancy which limited the permissible use of the leased premises to a doctor's office (see Koultukis v Phillips, 285 AD2d 433 [2001]). As a result, the petition must be [*2]reinstated and the matter remanded to the Civil Court for entry of a final judgment awarding landlord possession.
Decision Date: October 01, 2004