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Homewood Gardens Estates, LLC, Appellant v. Hillary Gibbs

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


March 1, 2013

HOMEWOOD GARDENS ESTATES, LLC, APPELLANT, --
v.
HILLARY GIBBS, RESPONDENT, -AND- "JOHN DOE" AND "JANE DOE," UNDERTENANTS.

Appeal from an order of the Civil Court of the City of New York, Kings County (Marc Finkelstein, J.), dated January 21, 2011.

Homewood Gardens Estates, LLC v Gibbs

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 1, 2013

PRESENT: WESTON, J.P., ALIOTTA and SOLOMON, JJ

The order denied landlord's motion to enter a final judgment and granted to an extent tenant's cross motion to dismiss the petition in a holdover summary proceeding.

ORDERED that the order is affirmed, without costs.

In this holdover proceeding predicated on a claim that landlord had terminated the lease based on, among other things, tenant's chronic nonpayment of rent, the parties entered into a stipulation pursuant to which tenant agreed to "pay monthly rent due by the 15th of each month" for a probationary period of 18 months beginning August 1, 2009. Upon a breach of the stipulation, landlord was entitled to have a final judgment entered. Approximately 12 months into the probationary period, landlord served a new notice of termination and, in June 2010, commenced a second holdover proceeding against tenant. Accordingly, tenant did not pay rent for July 2010, and landlord moved to have a final judgment entered in the instant proceeding. Tenant cross-moved to dismiss the instant petition on the ground that landlord's service of a new termination notice and commencement of the subsequent holdover proceeding had vitiated the instant holdover proceeding. The Civil Court denied landlord's motion and granted tenant's cross motion only to the extent of deeming the instant proceeding discontinued on the ground that the 18-month probationary period had expired.

We agree that landlord was not entitled to the entry of a final judgment of possession on the ground that tenant had failed to comply with the terms of the stipulation. The stipulation did not provide for the immediate entry of a final judgment, and the payments to be paid pursuant to the stipulation were denominated "rent" payments, not use and occupancy payments. Consequently, it is apparent from the stipulation that the parties contemplated that, if tenant complied with its terms, the tenancy would continue. In these circumstances, landlord's subsequent service of a new notice of termination terminated tenant's obligation to pay "rent" under the stipulation.

Accordingly, the order is affirmed.

Weston, J.P., Aliotta and Solomon, JJ., concur. Decision Date: March 01, 2013

20130301

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