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88th Street Realty, L.P. v. Maher (N.Y.App.Term 05/26/2010)

NEW YORK APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


May 26, 2010

88TH STREET REALTY, L.P., PETITIONER-LANDLORD-
v.
WILLIAM MAHER, RESPONDENT-TENANT-RESPONDENT, AND MAXINE NEMZER, RESPONDENT-UNDERTENANT-RESPONDENT.

Landlord appeals, as limited by its brief, from that portion of an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), dated July 31, 2008, which denied its motion to amend a prior judgment against tenant to increase the awards for use and occupancy and attorneys' fees.

Per curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

PRESENT: McKeon, P.J., Schoenfeld, J.

No. 570236/08

Order (Gerald Lebovits, J.), dated July 11, 2008, insofar as appealed from, affirmed, without costs.

Having failed to discharge his leasehold obligation to remove his licensee at the expiration of the lease term (see Stahl Assoc. Co. v Mapes, 111 AD2d 626, 629 [1985]), the tenant remained responsible to the landlord for the licensee's continued occupancy during the pendency of the summary holdover proceeding, viz., until the January 2, 2008 issuance of a possessory judgment in landlord's favor (see Fisher Ave. Realty Partners v Hausch, 186 Misc 2d 609 [2000]; Rubin v Academy Properties Ltd. Partnership, 6 Misc 3d 132[A] [2005], 2005 NY Slip Op 51624[U]). That there was delay in execution of the warrant of eviction and ouster of the licensee - delay occasioned in part by the landlord's own inaction - cannot serve to extend the departed tenant's liability for use and occupancy beyond the court's merits determination formally severing the tenant's own possessory interest in the demised premises. A contrary result could lead to the untenable result of rendering a former tenant perpetually liable for an unauthorized occupant's post-judgment refusal to vacate, and that despite the tenant's lack of recourse to remove the occupant or hasten the eviction process.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

20100526

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