A.J. Richard & Son, Inc. v America's Imaging Ctr., Inc.

[*1] A.J. Richard & Son, Inc. v America's Imaging Ctr., Inc. 2005 NY Slip Op 51579(U) [9 Misc 3d 130(A)] Decided on September 29, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 29, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: September 29, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PATTERSON, J.P., RIOS and BELEN, JJ.
2004-1580 Q C

A.J. Richard & Son, Inc., Appellant-Respondent,

against

America's Imaging Center, Inc., Respondent-Appellant.

Cross appeals from an order of the Civil Court of the City of New York, Queens County (Stephen S. Gottlieb, J.), dated July 29, 2004. The order granted a motion by tenant to dismiss the petition.

Order insofar as appealed from by landlord unanimously affirmed with $10 costs.

Cross appeal by tenant unanimously dismissed.

Contrary to the holding of the court below, the record does not clearly establish an acceptance, during the window period between the alleged termination of the lease and the commencement of this holdover proceeding, of rent accruing for a period after the alleged termination of the lease (Subway Rests. v Mannetti, 2003 NY Slip Op 51225[U] [App Term, 9th & 10th Jud Dists]) inasmuch as May 2004 rent had accrued prior to the termination date set forth in the notice. However, the express exclusion of defaults in rent from the conditional limitation clause in the lease is fatal to this holdover proceeding, which is based on the alleged termination of the lease after a default in rent (Lambert Houses Redevelopment Co. v Adam & Peck Org., 169 Misc 2d 667 [App Term, 1st Dept 1996]). Inasmuch as the law requires strict construction of language in leases that can work a forfeiture (Lerner v Johnson, 167 AD2d 372, 375 [1990]; Spring Close, LLC. v Players Rest. Gp., 7 Misc 3d 130[A], 2005 NY Slip Op 50539[U] [App Term, 9th & 10th Jud Dists]), paragraph 10 of the additional rider, in which landlord agreed to give tenant 10 days' notice of any default, including a default in the payment of rent, can by no means be read as restoring the conditional limitation for defaults in rent.

The cross appeal by tenant is dismissed because tenant is not aggrieved by the order dismissing the petition (CPLR 5515; Parochial Bus Systems v Board of Educ. of City of N.Y., 60 NY2d 539 [1983]; Schramm v Cold Spring Harbor Lab., 17 AD3d 661 [2005]). The points raised by tenant as additional grounds for dismissal of the petition have been considered as alternative grounds for affirmance. [*2]
Decision Date: September 29, 2005