Darwin Mgt. LLC v Avenue C Food Corp.

[*1] Darwin Mgt. LLC v Avenue C Food Corp. 2013 NY Slip Op 52233(U) Decided on December 30, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570579/13.

Darwin Management LLC, Petitioner-Landlord-Appellant, - -

against

Avenue C Food Corp., Respondent-Tenant-Respondent, -and- "ABC Corp" and "XYZ Inc.", Respondents-Undertenants.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County, (Frank P. Nervo, J.), entered January 17, 2013, after a nonjury trial, in favor of tenant dismissing the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Frank P. Nervo, J.), entered January 17, 2013, reversed, without costs, and final judgment awarded to landlord on its cause of action for possession. Execution of the warrant of eviction shall be stayed for 30 days.

Our authority to review the record developed at a bench trial and render the judgment warranted by the facts is as broad as that of the trial court (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). Exercising that authority here, and adopting the trial court's own fully supported factual finding that the commercial tenant did not cure the lease default complained of — its unauthorized installation of an ATM machine outside the mixed-use building premises — until roughly two weeks after the deadline date specified in landlord's cure notice, we award landlord the possessory judgment sought in the holdover petition. The commercial lease terminated upon tenant's failure to timely cure (see Runes v Douglas Elliman-Gibbons & Ives, 83 AD2d 805 [1981]), and the court was without power to revive the terminated lease (R.P.S.P. Pasta Corp. v Tor Valley, Inc., 229 AD2d 783, 784 [1996]).

Further, the trial court erred in its sua sponte consideration of the unpleaded affirmative defense of waiver (see Horst v Brown, 72 AD3d 434, 434-435 [2010], appeal dismissed 15 NY3d 743 [2010], a defense which, in any event, is without merit in light of the unambiguous nonwaiver provision of the parties' commercial lease (see Excel Graphics Tech. v CFG/AGSCB 75 Ninth Ave., 1 AD3d 65, 69-70 [2003], lv dismissed 2 NY3d 794 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 30, 2013