224 Seventh St. Assoc., LLC v AMP Mgt., Inc.
Annotate this CaseDecided on April 13, 2010
District Court of Nassau County, First District
224 Seventh Street Associates, LLC, Petitioner,
against
AMP Management, Inc., "JOHN DOE" and "JANE DOE", Respondents.
SP 006535/09
Westerman, Ball, Ederer, Miller & Sharfstein, LLP, Attorneys for Petitioner,1201 RXR Plaza, Uniondale, New York 11556, 516-622-9200; Law Office of William D. Shanahan, Attorneys for Respondent, 224 Seventh Street, Suite 201, Garden City, New York 11530, 516-535-2500,
Scott Fairgrieve, J.
Petitioner-Landlord, 224 Seventh Street Associates, LLC, moves by way of Motion for Summary Judgment, to:
(I)grant summary judgment in favor of petitioner;
(ii)award petitioner possession of the premises, plus $21,005.19 in rent and additional rent owed through October 31, 2009, and the reasonable value of use and occupancy of the premises from November 1, 2009 going forward, together with costs and disbursements of these proceedings, along with petitioner's legal fees;
(iii)issue a warrant of eviction, immediately; and
(iv)grant petitioner such other and further relied as this Court may deem just, proper and equitable.
Respondent AMP Management, Inc. opposes the motion. Its cross motion was not properly noticed and therefore is not before the Court.
FACTS AND PROCEDURAL HISTORY
A lease was entered into on November 25, 2003 between Respondent-Tenant, AMP
Management, Inc. and then-landlord Demmert Building Company, Inc. ("Demmert") with
respect to the property located at 224 Seventh Street, Suite 201, Garden City NY. The five year
term of the lease was from January 1, 2004 through December 31, 2008. Petitioner 224 Seventh
[*2]Street Associates, LLC purchased the building on June 27,
2007 and assumed the lease.
PERTINENT FACTS REGARDING THE LEASE
1.¶ 38 of the Rider to the Lease fixes the annual base rent for the period
commencing January 1, 2008 and ending December 31, 2008 at $41,992.22, payable in equal
monthly installments of $3,499.35 in advance of the first day of each month during said period.
2.The prior Landlord, Demmert, in ¶ 39 of the
lease, represented that it had installed an electricity meter for Tenant so that they may pay only
their actual use of electricity, not a flat fee based the square footage of their suite. Tenant was to
have directly paid the public service corporation ("LIPA") for electricity use.
3.Landlord, under ¶ 40, is entitled to demand an increase in rent should its
expenses for (I) taxes, (ii) heating and air conditioning, (iii) light and power, (iv) insurance, (v)
maintenance by contractor and (vi) labor in connection with the building shall increase. The
increase in rent shall be in proportion to Tenant's rentable square feet area (1,449 sq ft) of the
building and cannot exceed seven (7%) percent per annum for each year of the lease term.
4.Landlord is required to furnish a "comparative statement" in each lease year
showing a comparison of the expenses of the previous year and those of the current year for
which an increase in rent is demanded. If such a statement is not provided, a "notice of increase"
in expenses is to be provided. Tenant has the right to examine the books of Landlord showing the
building expenses for the purposes of verifying the information set forth in any comparative
statement.
5.Pursuant to ¶ 72, Tenant has an option to renew the lease for an additional
period of five (5) years. The lease states:
Tenant shall have an option to renew this Lease for an additional period of five (5) years
from expiration of the lease term in this Lease at a rent equivalent to fair market rental value for
such premises at the inception of the option period, plus percentage base fixed rent annual
increases equivalent annually to such increases specified in Paragraph 38 of this Lease, as well
as such additional increases specified in Paragraph 40 of this Lease. Except as stated above, such
renewal shall be on the same terms and conditions as contained in this Lease.
6.¶ 11 refers to subleasing and assignments. It states that Tenant may not
assign, mortgage or encumber the lease, nor sublet, or suffer or permit the premises, or any part
thereof to be used by others, without the prior written consent of Landlord. Transfer of the
majority of the stock of a corporate Tenant shall be deemed an assignment.
[*3]
7.§ 28 requires any statement from Tenant
to Landlord be sent by registered or certified mail.
The following is a discussion of the issues raised by the parties:
FIVE YEAR RENEWAL OPTION
Respondent states that on September 30th 2008 the following notice to exercise the option to renew the lease for five (5) years was sent by regular mail and hand-delivered to Petitioner (see ¶ 17 of Mitchell Barnett's affidavit):
On behalf of Andy, Paul, AMP Mgmt. and myself and pursuant to paragraph 72 of our current lease, we are notifying you that we intend to re-new the lease. As such, we are asking that you please contact us to discuss this is detail.
Petitioner states that Respondent never validly exercised its renewal option and could not exercise the option as it was in default of the lease at the end of its term. Petitioner adds that said option is also unenforceable as it has no time limitation and can be exercised at any point, even after expiration of the original lease term ending December 31, 2008, thereby violating the rules against perpetuity.
The renewal is ineffective, according to Petitioner because 1. the letter Respondent sent to Petitioner on September 30, 2008 indicated only that Respondent "intend[ed]" to renew the lease, and 2. the letter was not sent by registered or certified mail in accordance with § 28 of the lease.
Petitioner does not deny hand-delivery of the September 30th 2008 notice of renewal.
In Rasch's Landlord and Tenant, Fourth Edition, it is stated that:
§ 11:35. Necessity of Timely Notice to Renew
However, where a lease provides for notice to be given by registered mail, and the receipt of a letter by ordinary mail is not disputed, then strict compliance will be held to be unessential; for, "The obvious purpose of providing for notice by registered mail," said the Appellate Division, "was to insure the delivery of the notice, and to settle any dispute that might arise between the parties as to whether or not the notice was duly received."
In American Power Indus. v. Rebel Realty Corp. (145 AD2d 454 [2nd Dept, 1988]), the court ruled on just such a case wherein a renewal notice was not delivered in accordance with the methods proscribed in the lease. Tenant American Power Industries, Ltd., pursuant to its lease, [*4]was required to give written notice to the landlord by certified mail six (6) months prior to the end of the term in order to exercise its renewal option. Tenant did give written notice, but it was approximately four (4) months prior to the end of the lease term. The Appellate Court held that:
We find no evidence of prejudice to the defendant landlord as a result of the notice given by
the plaintiff (see, Grunberg v George Assocs., 104 AD2d 745). Furthermore, the
Supreme Court correctly determined from the evidence on record that the defendant did, in fact,
have actual notice of the plaintiff's intention to renew the lease for the option period (see,
Tritt v Huffman & Boyle Co., 121 AD2d 531; cf., McVey v Simone, 73 AD2d
959).
Based upon the timely mailing by regular mail
and personal delivery of the renewal notice, Petitioner's claims concerning the method of
delivery are without merit.
SUFFICIENCY OF NOTICE TO RENEW
To address the claim that Respondent's language expressing only "intent" in renewing the lease is insufficient to validly exercise the renewal option, it should be noted that Respondent could not have unilaterally determined the fair market value rent on which the renewal period would be based. Thus, Respondent could do no more than to only express intent and request negotiations. Such "minor discrepancies in the exercise may not render a renewal ineffective." See Landlord and Tenant Practice in New York, § 4:304.
The content of a notice to renew is discussed in American Jurisprudence, Second Edition, § 154. Substance of notice; demonstrating intent to renew :
. . . intent to renew may be shown by notices stating that the lessees are desirous of availing themselves of the option regarding the renewal of the lease, or that the lessee is tendering its required notice to renew.
¶ 72 of the lease states that the renewal would be "at a rent equivalent to fair market rental value for such premises at the inception of the option period." The fact that Respondent demonstrated its intent to renew, and its effort to meet with Petitioner to determine the fair market value rent is sufficient to establish that Respondent validly exercised its renewal option.
In Rasch's Landlord and Tenant, Fourth Edition, the Hon. Robert F. Dolan states:
§ 11:11. Necessity of Certainty
To be valid and enforceable, a covenant for renewal must either be reasonably definite and certain as to the term and the rent, or must contain a definite method whereby such term and rent may be determined.
Thus, it has been held that an agreement to renew at a rate to be mutually agreed upon by [*5]both landlord and tenant "to be fair and reasonable to both parties involved," is certain and enforceable, for it indicates that the parties intended to bind themselves to an objectively ascertainable fair and reasonable rent fixed either by a court, arbitrator, or other third party. Similarly, where the tenant is given the option of renewing a lease for specified periods upon the same terms and conditions except for the amount of rent, and the renewal clause fixes future rents at a "reasonable market value price," the renewal clause is not unenforceable for indefiniteness.
Respondent AMP Management, Inc. communicated its intent to renew on September 30, 2008 and requested Petitioner contact it to discuss the amount of rent. The evidence demonstrates that the parties had discussions about the renewal rent but were unable to reach an agreement.
This Court is not in the position to determine the fair market rent to be paid by Respondent
during the term of the renewal. The Court reminds both parties that there is an obligation of good
faith and fair dealing in all contractual matters. It is up to the parties to agree to the fair market
rent or in the alternative, the Supreme Court of Nassau County will have to determine this issue.
EFFECT OF RESPONDENT'S DEFAULT IN PAYING FULL RENT ON THE
RIGHT TO RENEW
There still remains the question as to whether Respondent can exercise its renewal option while in default of the lease. It is undisputed that Respondent accumulated rent arrears of $1,101.50 from January 1, 2008 through December 31, 2008. Petitioner claims in its moving papers and the February 10, 2009 letter to Respondent, that being in compliance with all terms of the lease is a condition precedent to an exercise of the renewal option. However, no such language exists in the renewal clause of the lease.
Rasch's Landlord and Tenant, § 11:36 addresses this issue:
§ 11:36. When Performance of Other Provisions of Lease Necessary
. . .
As a general rule, unless there is evidence of different intention, "dependence or independence of covenants may be determined by the order of time in which, by the terms and meaning of the contract, their performance is required."
Therefore, if a lease provides that a tenant may have the right to renew provided he shall have fully performed all the terms and conditions of the lease on his part to be performed, failure to perform all of such terms and conditions will forfeit the right to renew. However, if the lease does not so provide, then a question of construction will arise as to whether or not the parties intended to make the right to renew dependent upon the performance of any of the other [*6]conditions in the lease.
Rasch's Landlord and Tenant, discusses the situation involved in the case at bar:
§ 11:37. Rent Payment as Condition Precedent
Unless otherwise expressly provided, the payment of rent is not a condition precedent to the right of a tenant to a renewal.
There is no language in ¶ 72 of the lease conditioning execution of the option upon compliance with any of the covenants contained elsewhere in the lease. Furthermore, there is no evidence to establish that the parties intended to make the right to renew dependent upon the performance of any of the other conditions of the lease.
In Cellular Telephone Co. v. 210 East 86th Street Corp. (14 AD3d 305, 787 NYS2d 284, [1st Dept 2005]) the court held that Tenant's exercise of a renewal option in its lease was valid, under principles of equity, even though Tenant inadvertently failed to pay nominal cost-of-living increase, since the gravity of the loss was out of proportion to the gravity of the breach. ( See also J.N.A. Realty Corp. v. Cross Bay Chelsea, 42 NY2d 392, 397 NYS2d 958, 366 NE2d 1313 [1977]; Restoration Realty Corp. v. Robero, 87 AD2d 301, 450 NYS2d 825 [1982], affd. 58 NY2d 1089, 462 NYS2d 811, 449 NE2d 705 [1983] ).
In the case at bar, Respondent underpaid rent by $110.15 monthly for less than one (1) year, leaving a total arrears of $1,101.50, only 3.1% of the total rent due for that period ($34,993.50). Respondent's default in the nominal annual increase of rent from January 1, 2008 through October 31, 2008 does not preclude it from exercising its renewal option as the gravity of Respondent's loss of its renewal option would be out of proportion to the gravity of the $1,101.50 breach. Also, as already established, compliance with any other covenants was not a condition precedent to exercising the option.
Petitioner had not notified Respondent of any default prior to September 30th 2008, when
Respondent exercised its renewal option. Respondent denies receiving Petitioner's default notice
dated November 10th 2008 and Petitioner had not provided an affidavit of service to demonstrate
that such a notice was validly placed in a mail box controlled by the U.S. Post Office.
RULE AGAINST PERPETUITIES
Finally, Petitioner claims that the renewal option is unenforceable as it has no expiration date and can theoretically be executed at any time after the end of the lease term (December 31, 2008). This argument is based upon an unreasonable restraint on alienation, the Rule Against Perpetuities, found in EPTL § 9-1.1, which sets forth the common-law vesting rule and the suspension of alienation rule. The relevant paragraphs of EPTL § 9-1.1 state: [*7]
(2) Every present or future estate shall be void in its creation which shall suspend the absolute power of alienation by any limitation or condition for a longer period than lives in being at the creation of the estate and a term of not more than twenty-one years. Lives in being shall include a child conceived before the creation of the estate but born thereafter. In no case shall the lives measuring the permissible period be so designated or so numerous as to make proof of their end unreasonably difficult.
(b) No estate in property shall be valid unless it must vest, if at all, not later than twenty-one years after one or more lives in being at the creation of the estate and any period of gestation involved. In no case shall lives measuring the permissible period of vesting be so designated or so numerous as to make proof of their end unreasonably difficult.
In the Practice Commentaries of McKinney's Consolidated Laws of New York, EPTL § 9-1.1, Margaret Valentine Turano states that it is well settled that "because no measuring lives were used in (or could be gleaned from) the [lease], the perpetuities period was 21 years." Thus, if the option in the lease could be executed more than twenty-one (21) years after commencement of the lease, it would violate the § EPTL 9-1.1 and be void.
In the instant case, the language of the renewal option is clear: Respondent can renew the lease for an additional period of five (5) years from December 31st 2008. It is implied that the renewal must take effect before December 31st 2008 or the lease would expire and no renewal could occur. The landlord, Demmert, and tenant AMP Management, Inc. could not have intended that the option could be exercised at any time after December 31st 2008 as Petitioner states.
The renewal language contained in ¶ 72 of the lease is valid and it does not violate the rule against perpetuities.
In Jefpaul Garage Corp. v. Presbyterian Hosp. in City of New York (61 NY2d 442, 462 NE2d 1176, 474 NYS2d 458 [1st Dept.,1984], the court pointed out that even in light of a clear and unambiguous non-waiver and merger clause in a lease, a landlord can waive its right to reject a tenant's option to renew.
In Atkin's Waste Materials, Inc. V. May (34 NY2d 422, 426, 358 NYS2d 129, 314 NE2d 871 [4th Dept.,1973]) the tenant had failed to perform the covenants in the lease, which was a condition precedent to the right of renewal, the landlord kept the notice of renewal for four months before it rejected it, and during the period of the alleged defaults and until the end of the lease, about eleven months after the notice of renewal, it continued to accept rent payments. "Inasmuch as it had accepted rental payments with knowledge of the default and without attempting to terminate the lease in the method provided for by its terms, we held that the city had waived the default and that the tenant had properly exercised its option to renew." (see footnote 138 to Rasch's Landlord and Tenant, Fourth Edition, § 11:40). [*8]
For Petitioner to bring a holdover proceeding against Respondents, it must be alleged and proved: (1) that the party sought to be removed is a tenant; and (2) that he or she is holding over after the expiration of his or her term without the required permission. A landlord has the right to invoke strict performance by the tenant of the covenant in the lease to vacate and surrender the premises on the expiration of the lease; upon the tenant's failure so to do, the landlord may treat the tenant as a trespasser and institute summary proceedings for eviction. (see New York Jurisprudence, Second Edition § 13 [Generally; expiration of lease term]). Petitioner in the instant case has not proved the lease has expired.
The Second Department held in Brooks v Elabed (7 Misc 3d 132(A), 801 NYS2d 230 [2nd Dept 2005]) that:
Where, as here, no particular method for exercising a right to renew is prescribed for a lease, a tenant may adopt any reasonable method at the end of the term to indicate that tenant elects to renew the lease. Tenant's election may be implied from continuing in possession after expiration of the lease (see Foster v Stewart, 196 App Div 814 [1921]; Schwalben v Cholowaczuk, 75 Misc 2d 98 [1973]). Since the tenants herein not only remained in possession but tendered a check to landlord in the amount required under the renewal, the lower court's finding that the lease was renewed was supported by the evidence and, as a result thereof, its dismissal of the instant summary proceeding predicated upon the termination of an alleged month-to-month tenancy should be affirmed.
Likewise, in the instant case, no particular method for exercising the renewal was
prescribed, yet Respondents mailed a letter and hand-delivered it to Petitioner showing its intent
to renew, and continued to make monthly payments. Respondent AMP Management, Inc. validly
exercised its option to renew and is not a month-to-month tenant.
FAILURE TO PAY FULL RENT
The Court need not address whether Respondent owes Petitioner back rent because
Petitioner commenced a holdover proceeding requesting only use and occupation from
November 1st 2009 and continuing. There is no evidence to demonstrate that Petitioner sued
Respondent for nonpayment of rent.
INCREASE IN RENT (EXPENSE ESCALATION)
Petitioner alleges, according to Exhibit J of its motion, that Respondent owes $4,182.19 in additional rent (expense escalation), pursuant to ¶ 40 of the lease. However, as a condition precedent to collecting such escalated expenses, Petitioner was to provide Respondent with a "comparative statement" or "notice of increase" as defined in ¶ 40. Petitioner has provided neither. [*9]
As the Court of Appeals of New York stated in IDT Corp. v. Tyco Group (13 NY3d 209, 918 NE2d 913, 890 NYS2d 401):
'[a] condition precedent is 'an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises' (Calamari and Perillo, Contracts § 11-2, at 438 [3d ed.]; see, Re-statement [Second] of Contracts § 224; see also, Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 NY2d 106, 112-113, 472 NYS2d 592, 460 NE2d 1077). Most conditions precedent describe acts or event which must occur before a party is obliged to perform a promise made pursuant to an existing contract, a situation to be distinguished conceptually from a condition precedent to the formation or existence of the contract itself (see, M.K. Metals v. Container Recovery Corp., 645 F.2d 583) " ( Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690, 636 NYS2d 734, 660 NE2d 415 [1995] ).
As Petitioner did not meet the conditions precedent of providing Respondent with the
comparative statements or notices of increase for the years 2005-2009, it is precluded from
collecting any escalated expenses through 12/31/2009.
ELECTRICITY USAGE
Demmert, the prior landlord, did not install a separate electricity meter as it represented itself to have already done prior to commencement of the lease. Since then (January 1, 2004), no demand for payment of electricity usage had been made until Petitioner wrote a letter to Respondent on November 10, 2008, wherein Petitioner claimed Respondent had accumulated $4,830.00 in electricity usage arrears from 1/1/2007 through 10/31/2008. Respondent denies receiving the demand and Petitioner never submitted an affidavit of service that the letter was actually deposited into a U.S. Postal mail box.
Despite Petitioner's assertion that non-payment of electricity usage is a breach of the lease, Petitioner accepted rent for sixteen months since it purchased the property and took assignment of the lease. During those sixteen months (16), it never demanded said payments. As Judge Jaffe stated in 116 Madison Street, LLC v. Phillip Seid and Henry Seid (25 Misc 3d 1207(A) [Civ Ct, New York County, 2009]):
Acceptance of rent with knowledge of the conduct that is alleged to constitute a default under the terms of the lease constitutes a waiver of the default, as "[t]he acceptance of the rent is in effect an election by the landlord to continue the relationship of landlord and tenant." (Atkins Waste Materials, Inc. v. May, 34 NY2d 422, 427 [1974] ). In Jefpaul Garage Corp. v. Presbyterian Hospital in City of New York, 61 NY2d 442, 460-461 (1984), the Court of Appeals observed that:
[a]lthough the intent to waive is usually a question of fact, knowing acceptance of rent [*10]without any effort to terminate justifies an inference that the landlord has elected to hold the tenant to the lease. The primary reason for the rule is the inconsistency of the landlord's positions. As one old English case put it, the landlord should not be permitted "to treat a man as a tenant, and then treat him as a trespasser." Undoubtedly, however, the courts have applied the rule also to prevent a forfeiture of the tenant's estate.
Therefore, Petitioner has waived its right to bring this summary proceeding on the sole basis of Respondent being in default of the lease with respect to electricity payments. In fact, Demmert's misrepresentation of the existence of a separate meter prevented Respondent from complying with its obligation to make electricity payments directly to LIPA, pursuant to ¶ 39 of the lease. Therefore, even if Petitioner did not waive electricity payments, Respondent did not breach the lease in its refusal to make the payment demanded on November 10, 2008. There was never a written agreement for Respondent to pay Petitioner for electricity usage.
The Second Department in Joseph P. Day Realty Corp. v. Hume Pub., Inc. (204 AD2d 278, 611 NYS2d 299 [2 Dept 1994]) awarded the Landlord additional electric charges and increased expenses because the "lease expressly provided for these three additional charges, and it provided a mechanism for their calculation and notice." In the instant case, the lease did not provide for electric charges as additional rent; thus this Court lacks jurisdiction to award Petitioner payments for electricity use.
Electric was not included as additional rent for AMP Management, Inc. because Demmert obligated itself to install an electric meter which was never done. Petitioner will have to bring a separate plenary action to recover.
In a summary proceeding to recover possession of real property, this Court has no jurisdiction to adjudicate monetary claims other than for rent or additional rent. See Tivoli Associates v. Wing, (122 Misc 2d 901, 471 NYS2d 1018 [Civ Ct, Kings County, 1984]), wherein the court stated:
In a special proceeding pursuant to article 7 of the RPAPL, a court has no jurisdiction to adjudicate a monetary claim other than rent allegedly owed. (Rasch, NY Landlord & Tenant (2d ed.), sec. 995 and Allyn v. Markowitz 83 Misc 2d 250, 373 NYS2d 293, supra .)
In Landlord and Tenant Practice in New York, Finkelstein and Ferrara state in § 4:84:
. . . Usually, utilities are billed directly to the tenant by the service provider. However, if the
landlord will be assessing the tenant for such costs, the anticipated notification, billing, and
payment methods should be expressly delineated.
SUB-LEASE
[*11]
Petitioner claims that William D. Shanahan, Esq. (Respondent's counsel) was not an original principal or employee of AMP Management, Inc., is not currently a director or officer of the company, yet operates a law office in the subject premises in violation of ¶ 11 of the lease, which prohibits Respondent from subleasing any part of the premises without the prior, written consent of Petitioner.
Respondent denies such an occupation of the premises is a breach of the lease as Mr. Shanahan became a shareholder of AMP Management, Inc. on January 2, 2006. In reviewing the "Entity Information" provided by Petitioner, which originated from the NYS Department of State, Division of Corporations, AMP Management, Inc. had two-hundred (200) shares of stock as of January 11, 2010. In Respondent's "Shareholder Resolution" dated January 2, 2006, AMP Management, Inc. issued ten (10) shares of stock to William Shanahan to make him a minority shareholder.
In further support, Mr. Shanahan states that he has occupied the office since September 2005, notified Demmert of his presence in a letter dated October 20, 2005, to which Demmert responded by placing Mr. Shanahan's name in the building directory, in a conspicuous manner next to the front door of the building. Thus, any allegation of a breach of lease would be waived as Petitioner accepted rent payments from Respondent for over four (4) years without raising objection or attempting to evict Respondent.
According to Landlord and Tenant Practice in New York, Finkelstein and Ferrara state in § 2:145 that :
Under a sublease, a tenant conveys its right to occupy all or part of the premises to a subtenant or sublessee for some special part of the premises to a subtenant or sublessee for specified time period which must be less than the term reserved in the tenant's lease with its landlord. Despite the sublease, the prime tenant retains privity of contract with its landlord and remains responsible for all obligations under the prime lease. The subtenant, on the other hand, will enjoy neither a privity of contract nor privity of estate with the overlandlord.
In the case at bar, William D. Shanahan validly became a shareholder of AMP Management,
Inc. and thus is not a subtenant. In fact, Petitioner, according to Mitchell Barnett, Esq. installed
new nameplates for all attorneys on the building after Petitioner became owner of the building,
see ¶ 14 of Barnett's affidavit.
CONCLUSION
Petitioner's motion for summary judgment is denied in its entirety. This Court concludes that Petitioner cannot maintain this holdover proceeding because Respondent validly exercised its option to extend the lease for an additional five (5) years. The issue of fair market rent will have to be agreed upon by the parties or be determined by a separate declaratory action in the [*12]Supreme Court of Nassau County.
Petitioner cannot recover for electric because these charges are not additional rent pursuant to the lease.
Petitioner cannot recover for the additional rent escalation charges because Petitioner never provided Respondent with the statements required by the lease.
Attorney William D. Shanahan is not a subtenant but a valid shareholder of Respondent.
Petitioner cannot collect rent arrears because it was never prayed for in the original petition. The Petition dated November 2nd 2009 reads:
WHEREFORE, Petitioner-Landlord prays for a judgment awarding it possession of the Premises, together with the reasonable value of use and occupation of the Premises from November 1, 2009 going forward, together with these costs and disbursements of these proceedings, and for a warrant to remove respondent from possession of the Premises.
The holdover proceeding is dismissed.
So Ordered:
/s/
DISTRICT COURT JUDGE
Dated:April 13, 2010
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