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Merenda v. Fried

Supreme Court of New York, Second Department

January 27, 2014

Angelo Merenda, Respondent,
v.
Howard L. Fried, Appellant.

PRESENT:: TOLBERT, J.P., NICOLAI and IANNACCI, JJ

Appeal from a final judgment of the City Court of New Rochelle, Westchester County (Gail B. Rice, J.), entered May 24, 2011. The final judgment, entered following tenant's failure to make a court-ordered payment of rent, awarded landlord possession and the sum of $5, 400 in a holdover summary proceeding.

ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the City Court for all further proceedings.

In this holdover proceeding, landlord alleges that it terminated tenant's month-to-month tenancy. Tenant alleges that his lease, which expired in 2009, contained a five-year renewal option and that he exercised the renewal option. In response, landlord claims, among other things, that the renewal option was unenforceable for indefiniteness, because it provided that the renewal rents were to be determined based on "current market values." At one point during the course of this proceeding, the City Court ordered tenant to pay landlord two months' rent. When tenant failed to pay that rent, the court awarded landlord a final judgment for possession and the two months' rent.

It was error for the City Court to award landlord a final judgment of possession based on tenant's failure to make the court-ordered payment of two months' rent (see Rizzuto v Novack, 2002 NY Slip Op 50701[U] [App Term, 9th & 10th Jud Dists 2002]; Stepping Stones Assoc. v Seymour, 184 Misc.2d 990 [App Term, 9th & 10th Jud Dists 2007]; cf. RPAPL 745 [2] [applicable only in the City of New York]). Accordingly, the final judgment must be reversed and the matter remitted to the City Court for all further proceedings. We note that if the City Court ultimately determines that a renewal lease exists (see Northrop v Hushard, 129 A.D.2d 1005 [1987]), it must dismiss the holdover petition. In the circumstances presented, we decline tenant's request to be restored to possession.

Tolbert, J.P., Nicolai and Iannacci, JJ., concur.


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