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205 E. 77th St. Tenants Corp. v. Meadow

Supreme Court of New York, First Department

November 14, 2013

205 E. 77th St. Tenants Corp., Petitioner-Landlord-Appellant, - -
v.
Jon C. Meadow, Respondent-Tenant-Respondent, -and-

Landlord appeals from an order of the Civil Court of the City of New York, New York County (John H. Stanley, J.), dated January 2, 2013, which, inter alia, denied its motion for summary judgment of possession in a holdover summary proceeding and directed a hearing to determine whether tenant cured the objectionable conduct.

PRESENT: Shulman, J.P., Schoenfeld, Hunter, Jr., JJ

PER CURIAM.

Order (John H. Stanley, J.), dated January 2, 2013, reversed, with $10 costs, landlord's motion for summary judgment of possession granted and the court's directive that a cure hearing be held vacated. Issuance of the warrant of eviction shall be stayed for 30 days from service of a copy of this order with notice of entry.

The cure provisions of RPAPL 753(4) find no application to this holdover summary proceeding, in view of Supreme Court's prior (unappealed) determination that tenant's proprietary lease was validly terminated based upon his repeated instances of "objectionable conduct" (see RPAPL 753[3]; Chi-Am Realty, LLC v Guddahl, 33 A.D.3d 911 [2006]). Tenant is also precluded from asserting a right to cure under familiar principles of collateral estoppel, based upon Supreme Court's express determination that the conduct at issue is not capable of cure (see H.K.D. Seafood v 25 N. Moore Assoc., 271 A.D.2d 351 [2000]; P.W.B. Enters. v Moklam Enters., 221 A.D.2d 184 [1995]).


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