2268 Church Ave., LLC v Clarke

[*1] 2268 Church Ave., LLC v Clarke 2015 NY Slip Op 50915(U) Decided on June 16, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2013-2662 K C

2268 Church Avenue, LLC, Appellant,

against

Terrance Clarke, TERRENCE A. CLARKE Doing Business as STRICTLY VEGETARIAN, Respondents, -and- "XYZ CORP.", "JOHN DOE" and "JANE DOE", Undertenants.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered March 4, 2013. The final judgment, after a nonjury trial, dismissed the petition in a holdover summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

In this holdover proceeding, the petition and attached 30-day notice of termination allege that landlord terminated the tenancy "by monthly hiring" of Terrance [sic] Clarke and Terrence [sic] A. Clarke doing business as Strictly Vegetarian, effective July 31, 2012. At a nonjury trial, landlord's agent testified that tenant had been in possession of the premises when landlord purchased the building, and that there was no "valid lease." However, he also testified that he was aware of several leases, and that he had spoken to tenant about a lease, but that he had understood that it was expiring in June of 2012. During the course of the trial, tenant sought to admit into evidence one version of a lease commencing June 1, 2007 and landlord sought to admit a different version of a lease commencing on that same date. Issues with respect to the authenticity of both of the leases were raised, and the court reserved decision on the admissibility of the leases. In a decision after trial, the Civil Court admitted both of the purported leases and, finding that tenant had established the existence of a 25-year lease, dismissed the petition.

While this holdover proceeding was predicated upon a termination notice and a petition alleging that there was a tenancy "by monthly hiring," there was no proof introduced at trial to support these allegations and no motion to conform the pleadings to the proof. Consequently, we affirm the dismissal of the petition for failure of proof (see Longobardi v Martin, 43 Misc 3d 128[A], 2014 NY Slip Op 50525[U] [App Term, 2d, 11th & 13th Jud Dists 2014]). In view of the foregoing, we do not reach the issue of the propriety of the Civil Court's finding that tenant [*2]had established the existence of a 25-year lease.

Accordingly, the final judgment is affirmed.

Weston, J.P., Aliotta and Elliot, JJ., concur.
Decision Date: June 16, 2015