Barrett Japaning Inc. v Bialobroda

[*1] Barrett Japaning Inc. v Bialobroda 2014 NY Slip Op 51404(U) Decided on September 22, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570225/13

Barrett Japaning Inc., Petitioner-Landlord-Appellant, -

against

Anna Bialobroda, Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Sabrina B. Kraus. J.), entered November 13, 2013, which granted tenant's motion to dismiss the petition in a holdover summary proceeding.

Per Curiam.

Order (Sabrina B. Kraus, J.), entered November 13, 2013, affirmed, with $10 costs.

We agree, essentially for reasons stated by the motion court, that the March 2009 termination notice underlying the prior, April 2009 illegal sublet holdover proceeding between the parties cannot serve as a valid predicate for the within illegal sublet proceeding commenced by landlord in September 2013, some four and a half years later (see Kaycee W. 113th St. Corp. v Diakoff, 160 AD3d 573 [1990]). The earlier proceeding was tried to completion, landlord was awarded a possessory judgment, and tenant was given a postjudgment opportunity to, and in fact did, cure the subletting violation pursuant to RPAPL 753(4). Landlord now seeks to resurrect its stale termination notice based on allegations that tenant improperly installed a new subtenant at some unspecified point in time after the culmination of the earlier proceeding. We cannot countenance such a result, which would, in effect, run afoul of the rule that a prior lease violation, "once cured, cannot be the basis for forfeiture of the lease" (Novak v Fischbein, Olivieri Rozenholc & Badillo, 151 AD2d 296, 298 [1987]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: September 22, 2014