Lawrence A. Omansky, Plaintiff,
160 Chambers Street Owners, Inc., Defendant-Respondent, Mary A Cohen, et al., Defendants, Commerce Court 160 Chambers, Inc., Defendant-Intervenor-Appellant.
Seyfarth Shaw LLP, New York (Jerry A. Montag of counsel), for
& Bruh LLP, New York (Nativ Winiarsky of counsel), for
Richter, J.P., Mazzarelli, Kahn, Moulton, JJ.
Supreme Court, New York County (Barbara Jaffe, J.), entered
August 1, 2016, which evicted plaintiff from the subject
premises and bringing up for review a supplemental order,
same court and Justice, entered January 22, 2016, granting
the motion of defendant 160 Chambers Street Owners, Inc. (the
Cooperative) for summary judgment on the holdover petition,
evicted plaintiff from the subject premises, unanimously
affirmed, without costs. Appeal from the supplemental order,
unanimously dismissed, without costs, as subsumed in the
appeal from the judgment. Order, same court and Justice,
entered April 20, 2017, which denied defendant-intervenor
Commerce Court 160 Chambers, Inc.'s motion for leave to
renew the order granting the Cooperative's motion for
summary judgment, unanimously affirmed, without costs. Appeal
from the judgment, same court and Justice, entered July 17,
2017, which ordered plaintiff to pay damages to the
Cooperative for unpaid rent and attorneys' fees and
costs, unanimously dismissed, without costs, as abandoned.
landlord-tenant dispute concerns the ground floor commercial
space in a cooperative building owned by the Cooperative.
Plaintiff was the original tenant and defendant-intervenor
Commerce Court 160 Chambers, Inc. (Commerce) purports to be
his indirect successor-in-interest.
Cooperative's motion for summary judgment was properly
granted as to its holdover petition.
attempt to renew the lease by letter in December 1992 - over
15 years prior to its expiration - failed to comply with the
lease's condition that the option to renew be exercised
"within (60) days before the end of each twenty-five
year term." As such, the renewal was not effective. Even
if a Cooperative representative countersigned the renewal
letter, that did not waive this condition, as the
acknowledgment was expressly limited "to the extent
permitted by the applicable lease."
the Cooperative failed to comply with its obligation to
notify plaintiff of his right to exercise the renewal option
within 15 days of expiration of the lease, this failure did
not have the effect of automatically renewing the lease. Nor
did the Cooperative somehow waive the right to object to the
failure to renew by accepting rent checks from Omansky
post-termination, as continued acceptance of rent post-lease
termination merely creates a month-to-month holdover tenancy
(Real Property Law § 232-c; cf. Jefpaul Garage Corp.
v Presbyt. Hosp. in NY, 61 N.Y.2d 442, 448 ).
the lease was never validly renewed, it expired at the end of
its initial 25 year term in June 2008. As a result,
plaintiff's leasehold interest ceased to exist and could
not have been assigned to Commerce over one year later.
even if the assignment to Commerce from Nicolena's B and
B II Inc. (Nicolena's) (an entity wholly owned by
plaintiff) was valid, the prior assignment from plaintiff to
Nicolena's was not, because plaintiff failed to notify
the Cooperative of the purported assignment within 30 days,
as required by the lease. As such, Nicolena's had nothing
to assign. Further, even if the Cooperative retained
Commerce's checks, this did not waive the notice
requirement because the lease contained a specific "No
Waiver" provision (see Jefpaul, 61 N.Y.2d at
motion to renew was properly denied because it was not
"based upon new facts" and did not "contain
reasonable justification for the failure to present such
facts on the prior motion" (CPLR 2221[e]-;
Henry v Peguero, 72 A.D.3d 600, 602 [1st Dept 2010],
lv dismissed 15 N.Y.3d 820');">15 N.Y.3d 820 ). The documents
publicly filed in the related defamation action were
available to Commerce at the time of its opposition to the
instant summary judgment motion, and those that were not yet
available merely reiterated the same points (see Genger v
Genger, 123 A.D.3d 445, 447 [1st Dept 2014]; Whalen
v NYC Dept. of Envtl. Protection, 89 A.D.3d 416, 417
[1st Dept 2011]). Commerce fails to adequately explain why it
did not search for these documents earlier. Alternatively, on
the merits these documents would not change the results.
of our disposition of these issues, we need not reach the
issues of whether the lease was validly terminated for
nonpayment of rent or whether reversal would be warranted if
the motion to renew were granted. We ...