Peekskill Hous. Auth. v Dunlap

[*1] Peekskill Hous. Auth. v Dunlap 2020 NY Slip Op 51486(U) Decided on December 3, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : THOMAS A. ADAMS, P.J., BRUCE E. TOLBERT, TERRY JANE RUDERMAN, JJ
2019-1317 W C

Peekskill Housing Authority, Appellant,

against

Gary Dunlap and Lekeya Dunlap, Respondents.

Katz & Klein, Esqs. (Gerald M. Klein of counsel), for appellant. Legal Sevices of the Hudson Valley (Mihaela Petrescu of counsel), for respondents.

Appeal from a final judgment of the City Court of Peekskill, Westchester County (Reginald J. Johnson, J.), entered March 11, 2019. The final judgment, after a nonjury trial, dismissed the petition in a holdover summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

In this holdover proceeding brought against tenant, Gary Dunlap, and his daughter, Lekeya Dunlap, pursuant to RPAPL 711 (1), landlord appeals from a final judgment which, after a nonjury trial, dismissed the petition.

As landlord acknowledges on appeal, "A holdover proceeding based upon a landlord's termination of a lease may only be maintained where there is a conditional limitation in the lease providing for its early termination" (JCF Assoc., LLC v Sign Up USA, Inc., 59 Misc 3d 135[A], 2018 NY Slip Op 50501[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] [internal quotation marks omitted]; see also TSS-Seedman's, Inc. v Elota Realty Co., 72 NY2d 1024, 1026-1027 [1988]; Perrotta v Western Regional Off-Track Betting Corp., 98 AD2d 1, 5 [1983]; 1900 Albemarle, LLC v Solon, 57 Misc 3d 158[A], 2017 NY Slip Op 51665[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Fourth Hous. Co., Inc. v Bowers, 53 Misc 3d 43, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Where a conditional limitation is set in motion by a tenant's breach, the direct cause of the expiration of the lease is the lapse of time fixed in a notice, not the breach itself (see 2 Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 23:29 at 190 [4th ed [*2]1998]). Here, the cause of the expiration of the lease was not the lapse of time fixed in a notice, nor does the lease provide for such expiration. Indeed, the notice at issue provided that tenant was entitled to a grievance procedure to challenge the termination of the tenancy. Where a termination pursuant to a lease is "by forfeiture for breach of condition and not by lapse of time, a breach would not make [a tenant] subject to a summary proceeding" (Perrotta, 98 AD2d at 5). Rather, the landlord's remedy would be an ejectment action (see 2 Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings §§ 23:12, 23:25 [4th ed 1998]). Therefore, we agree with the City Court that the petition should have been dismissed, albeit for reasons other than those stated by the City Court.

Accordingly, the final judgment is affirmed.

ADAMS, P.J., TOLBERT and RUDERMAN, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 3, 2020