Linda Tenants Corp. v Spanakos

[*1] Linda Tenants Corp. v Spanakos 2014 NY Slip Op 50705(U) Decided on April 16, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ
2012-1882 Q C.

Linda Tenants Corp., Respondent,

against

Michael Spanakos, Appellant.

Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Terence C. O'Connor, J.), entered January 19, 2012. The final judgment, after a nonjury trial, awarded landlord possession in a holdover summary proceeding.

ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.

Landlord, a cooperative corporation, commenced this commercial holdover proceeding against tenant, a shareholder and proprietary lessee, to recover possession of a parking space which had been leased to tenant as an incident of his proprietary lease. Landlord alleged that tenant held the parking space pursuant to a month-to-month oral agreement and that it had served tenant with a 30-day notice of termination.
Tenant defended on the ground, among others, that landlord had brought the proceeding in retaliation for various of his actions, including his organizing shareholder opposition to landlord's managing agent, and his complaints to the New York State Attorney General. Following a nonjury trial, the Civil Court awarded possession to landlord, ruling that the retaliatory-eviction defense (Real Property Law § 223-b) is inapplicable to parking spaces.

It is undisputed that the subject parking space was provided to tenant as an incident of his proprietary lease. As such, the standard for judicial review of landlord's actions and determinations is, as noted by landlord, the business judgment rule (Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 537-538 [1990]). "[A]rbitrary or malicious decision making . . . is not protected by the business judgment rule" (Fletcher v Dakota, Inc., 99 AD3d 43, 48 [2012]). Here, since landlord neither alleged nor proved a reason for its decision to terminate tenant's parking-space lease, it cannot be determined whether landlord's actions were "taken in good faith and in . . . legitimate furtherance of corporate purposes" (Matter of Levandusky, 75 NY2d at 538), or whether they were arbitrary. In view of landlord's failure to articulate any basis for the termination, the petition must be dismissed (see Board of Managers of General Apt. Corp. Condominium v Abramowitz, 155 Misc 2d 828 [Civ Ct, Queens County 1992]; cf. Skouras v Victoria Hall Condominium, 73 AD3d 902, 903 [2010], and cases cited therein).

In view of the foregoing, we do not reach the issues of whether the retaliatory-eviction defense applies to parking-space holdover proceedings and whether, if it does, tenant established that defense.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: April 16, 2014