Marshall v Ahamed

[*1] Marshall v Ahamed 2004 NY Slip Op 51549(U) Decided on December 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
2003-956 K C

DIANE MARSHALL, Respondent,

against

TAMIZ AHAMED and MOHAMMED KARIM, Appellants.

Appeal by tenants from a final judgment of the Civil Court, Kings County (S. Goodheartz, J.H.O.), entered June 24, 2003, which awarded landlord possession and the sum of $17,505.99.

Final judgment unanimously affirmed without costs.

In this commercial holdover proceeding, the lease contained a provision which required tenants to supply landlord with professionally prepared plans and specifications prior to commencing any work to alter or improve the demised premises. The lease further provided that a failure to comply with said provision would be a material breach of the lease. After tenants renovated the demised premises, but before they opened their commercial establishment, landlord served a notice to cure which identified specific provisions of the lease which landlord claimed were violated. Tenant failed to cure the alleged violations and did not seek a Yellowstone injunction (see First Nat. Stores v Yellowstone Shopping Center, 21 NY2d 630 [1968]). Landlord subsequently served a notice to terminate the lease and then commenced the instant holdover proceeding.

The evidence adduced at trial established that tenants violated the lease. Inasmuch as the parties to this commercial lease agreed that even a single violation of said lease provision would [*2]be a material breach of the lease, tenants' claim that their breaches were not material is incorrect (see 1029 Sixth LLC v Riniv Corp., 9 AD3d 142 [2004]). Further, contrary to tenants' contentions, landlord did not waive the material violations of the lease (see Jefpaul Garage Corp. v Presbyterian Hosp. in City of N. Y., 61 NY2d 442 [1984]; Horowitz v 1025 Fifth Avenue, Inc., 7 AD3d 461 [2004]; Guardia v [*3]
205 W. St. Corp., 205 AD2d 306 [1994]; Matter of Paulsen Real Estate Corp. v Grammick, 244 AD2d 340 [1997]). As a result, landlord was entitled to a final judgment awarding her possession of the premises.
Decision Date: December 08, 2004