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Beacon 109 223-225 LLC, Petitioner-Landlord-Respondent v. Mon Sheng Wu

New York Supreme and/or Appellate Courts Appellate Term, First Department


August 18, 2011

BEACON 109 223-225 LLC, PETITIONER-LANDLORD-RESPONDENT,
v.
MON SHENG WU, RESPONDENT-TENANT-APPELLANT, -AND- MIKA FURUYA, "JOHN DOE" AND "JANE DOE," RESPONDENTS-UNDERTENANTS.

Per curiam.

Beacon 109 223-225 LLC v Mon Sheng Wu

Decided on August 18, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ

Tenant appeals, as limited by his brief, from so much of an order of the Civil Court of the City of New York, New York County (David J. Kaplan, J.), entered November 29, 2010, as denied his cross motion for summary judgment dismissing the petition in a holdover summary proceeding.

Order (David J. Kaplan, J.), entered November 29, 2010, insofar as appealed from, affirmed, with $10 costs.

Civil Court properly denied tenant's cross motion for summary judgment of dismissal of the holdover petition. Tenant failed to establish as a matter of law that landlord "intended to relinquish a known right" (Sullivan v Brevard Assoc., 66 NY2d 489, 495 [1985]), when it accepted a single, unsolicited rent check from tenant "during the so-called window period' between termination of the tenancy on nonprimary residence grounds and the commencement of the within [holdover] proceeding" (West Waverly Equities Group v Lieff, 190 Misc 2d 280, 281 [2001]; see Baginski v Lysiak, 154 Misc 2d 275, 276 [1992]; Metropolitan Ins. & Annuity Co. v Hartman, 11 Misc 3d 140[A], 2006 NY Slip Op 50665[U] [2006]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: August 18, 2011

20110818

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