43-19 39th Place, LLC v Morillo

[*1] 43-19 39th Place, LLC v Morillo 2007 NY Slip Op 52333(U) [17 Misc 3d 138(A)] Decided on December 7, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-1855 Q C.

43-19 39th Place, LLC, Appellant,

against

Lucas Morillo, Respondent, -and- "John Doe" and "Jane Doe", Undertenants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), dated October 4, 2006. The order granted tenant's motion and vacated the warrant and dismissed the petition in a holdover summary proceeding.

Order modified by striking the provision dismissing the petition, and by reinstating the petition and final judgment; as so modified, affirmed without costs.

We agree with the Housing Court that landlord's offer of a renewal lease, which lease was not made subject to the previously issued warrant, and tenant's acceptance thereof and payment of the increased security deposit, reinstated the tenancy and vitiated the warrant (see Everett D. Jennings Apts. v Hinds, 12 Misc 3d 139[A], 2006 NY Slip Op 51335[U] [App Term, 2d & 11th Jud Dists]; Stepping Stones Assoc. v Seymour, 8 Misc 3d 138[A], 2005 NY Slip Op 51309[U] [App Term, 9th & 10th Jud Dists]; Kew Gardens Assoc. v Camacho, 3 Misc 3d 135[A], 2004 NY Slip Op 50473[U] [App Term, 2d & 11th Jud Dists]; River Rd. Assoc. v Orenstein, NYLJ, Dec. 14, 1992 [App Term, 9th & 10th Jud Dists]; Third FGP, Inc. v Babalola, NYLJ, Nov. 10, 1992 [App Term, 2d & 11th Jud Dists]; Blecher v Pachay, NYLJ, May 14, 1991 [App Term, 2d & 11th Jud Dists]; Metropolitan Assoc. v Cruso, NYLJ, Oct. 6, 1990 [App Term, 2d & 11th Jud Dists]; see also Surf 21 Assoc. v Ramos, NYLJ, Mar. 18, 2003 [App Term, 2d & 11th Jud Dists]; Ambassador Realty Co. v Wachtel, 139 Misc 2d 965 [1988]; but [*2]see Habitat II Co. v Soffer, NYLJ, June 26, 2000 [App Term, 1st Dept]; AA Spirer & Co. v Adams, NYLJ, June 3, 1991 [App Term, 1st Dept]; Kibel v Davan, NYLJ, Oct 31, 1991 [App Term, 1st Dept]). However, while the execution of the lease vitiated the warrant, the final judgment should not have been disturbed (see Kew Gardens NY, LLC v Saltos, 10
Misc 3d 145[A], 2006 NY Slip Op 50135[U] [App Term, 2d & 11th Jud Dists]), and we modify the order accordingly.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: December 7, 2007