1894 Eastchester Prof'l Bldg., Ltd.v.Christopher

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENTOct 7, 2015
No. 570605/15 (N.Y. App. Div. 2015)
No. 570605/1526 N.Y.S.3d 7252015 WL 58276782015 N.Y. Slip Op. 51481

No. 570605/15.

10-07-2015

1894 EASTCHESTER PROFESSIONAL BUILDING, LTD., Petitioner–Landlord–Respondent, v. Gerald CHRISTOPHER d/b/a Good To Go Restaurant, Respondent–Tenant–Appellant.


Opinion

PER CURIAM.

Order (Eddie J. McShan, J.), dated March 30, 2015, modified to deny landlord's cross motion for summary judgment of possession; as modified, order affirmed, without costs. Appeal from order (Eddie J. McShan, J.) entered November 17, 2014, dismissed, without costs, as abandoned.

While the motion court purported to deny tenant's motion for reargument, the merits of the motion were addressed and the court, in effect, granted reargument, even though it ultimately adhered to its original determination (see Jackson v. Leung, 99 AD3d 489, 490 2012; Matter of State Farm Mut. Auto. Ins. Co. v. King, 304 A.D.2d 390 2003 ). Thus, the March 30, 2015 order is appealable.

Turning to the merits, Civil Court correctly denied tenant's motion to dismiss the underlying commercial holdover proceeding. Tenant's claim of waiver, based upon landlord's acceptance of rent for the months of June and July 2014, was correctly rejected. The June 2014 rent was accepted pursuant to the terms of the parties' August 26, 2013 stipulation in the related Yellowstone action, thereby negating any inference that landlord waived the prior termination of the lease (see Sharp v. Stavisky, 242 A.D.2d 447 1997, lv dismissed 91 N.Y.2d 956 1999 ). Nor did the acceptance of the July 2014 rent after this holdover proceeding was commenced constitute a waiver (see RPAPL 7111; Oppenheim v. Spike, 107 Misc.2d 55 1980 ). Tenant's claim that landlord's acceptance of July 2013 rent constituted a waiver, an argument raised for the first time in tenant's renewal motion, was properly rejected (see Marino v. Brown, 225 A.D.2d 529 1996 ).

Tenant's argument regarding the absence of the affidavit of service of the notice of cancellation was not raised below. “This is clearly a matter that could have been resolved by the submission of documentary evidence, obviating consideration of the issue by the court, and it may not therefore be raised for the first time on appeal” (P.T. Bank Cent. Asia v. Chinese Am. Bank, 229 A.D.2d 224, 229 1997 ). We also note that the issue of the sufficiency of the predicate notices, decided adversely to tenant by Supreme Court, has been abandoned on this appeal.

We agree with tenant, however, that landlord's cross motion for summary judgment of possession should have been denied. Tenant's breach of the lease was not conclusively established on this record. The Supreme Court determination denying tenant's application for Yellowstone relief-on the procedural ground that the action was untimely commenced after the time to cure expired and the lease was terminated-did not constitute an adjudication on the merits that tenant defaulted under the lease (see 875 W. 181 Owners Corp. v. KB Gallery, LLC, 124 AD3d 549 2015; Matter of 251 Main St. Corp. v. Christine's Shoes Corp., 267 A.D.2d 415 1999 ). Although Supreme Court's decision also indicated that tenant's Yellowstone application “neglected to rebut” the allegations in the notice to cure that he breached the lease by making an improper use of outdoor space, “this was merely dictum wholly unnecessary to [Supreme] Court's holding” (Sahn v. AFCO Indus., 192 A.D.2d 480 1993; see Adam v. Cutner & Rathkopf, 238 A.D.2d 234, 242 1997 ). Indeed, once Supreme Court determined that the Yellowstone application was untimely, the “merits of the alleged [lease] defaults ... [became] irrelevant” (King Party Ctr. of Pitkin Ave. v. Minco Realty, 286 A.D.2d 373, 375 2001 ). Moreover, insofar as Supreme Court's finding as to the outdoor space was an alternative ground on which its decision was predicated, the limited record now before us does not contain the pleadings in the Yellowstone action, and only contains a small portion or the evidence that was before Supreme Court. Therefore, we cannot determine whether the doctrine of collateral estoppel is properly applied to the purported alternative determination (Malloy v. Trombley, 50 N.Y.2d 46 1980 ), i.e., whether the issue of tenant's use of the outdoor space “was fully litigated [in Supreme Court], and [tenant] had full opportunity to be heard [on the issue] and was in no way, motivationally or procedurally, restricted or inhibited in the presentation of his position” (id. at 52–53).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur.