BUDDY PROPERTIES LLC v. RADOMSKI (2026)

Recitation, as required by CPLR 2219 (a) of the papers considered in review of this motion by NYSCEF Doc Nos: 9-15, 17-24, 26, 30, 31, 32.

PROCEDURAL POSTURE AND BACKGROUND

This is a breach of lease holdover proceeding premised upon nuisance behavior commenced against respondents on October 13, 2025, predicated upon a 10-day notice to cure, dated June 19, 2025, and a 10-day notice of termination, dated September 5, 2025. The parties’ first rent-stabilized lease agreement, dated February 19, 2024, was for a one-year lease term, commencing April 1, 2024 and ending March 31, 2025. (NYSCEF Doc No. 13, respondent's exhibit B, vacancy lease.) Paragraph 17(a) of the lease, titled “RENTER DEFAULT,” provides as follows:

“(a) In the event Renter does not comply with any of the obligations of this lease other than for the payment of rent, creates a nuisance, engages in conduct detrimental to the safety of other Renters, intentionally damages the property, or is disturbing to other Renters, the Owner may serve Renter with a written notice obligating Renter to stop or cure the specified default within ten (10) days. Renter must either correct or begin to correct the default within the cure period. If Renter does not stop or begin to correct the default within the cure period, Owner may terminate the lease upon seven (7) days written notice.” (Id. at 4 [emphasis added].)

The notice to cure alleges respondent is violating Section 2524.3 (a) of the Rent Stabilization Code (“RSC”) and Paragraphs 17, 27, and 38 of the lease agreement,¹ by violating a substantial obligation of her tenancy “in that you are causing/committing a nuisance in the building by (1) harboring a dog at the [p]remises, which is aggressive, threatening, vicious towards other tenants in and around the building; and, (2) conducting yourself in such a way as to threaten building staff; that you are maliciously or by reason of gross negligence, substantially damaging the housing accommodation; that you are engaging in a persistent and continuing course of conduct evidencing an unwarranted, unreasonable or unlawful use of the property to the annoyance, inconvenience, discomfort or damage to others, the primary purpose of which is intended to harass the owner or other tenants or occupants of the building wherein your apartment is located by interfering substantially with their comfort and safety.” (NYSCEF Doc No. 3 at 1, notice to cure.)

The notice to cure contains factual allegations primarily related to respondent's dog's behavior and directs respondent to cure the violations by August 10, 2025. (Id. at 2.) The notice of termination states respondent failed to timely cure, and additionally alleges that “[o]n August 29, 2025, your dog attacked another tenant's dog directly outside the building when your dog was unleashed. This is the second time your dog attacked this particular dog.” (NYSCEF Doc No. 4 at 2.) The notice states petitioner elects to terminate respondent's tenancy and directed respondent to remove from the subject premises by September 30, 2025, “the day on which your term expires pursuant to this [n]otice,” or petitioner will commence a summary holdover proceeding. (Id. at 1.)

Respondent retained counsel and filed the instant motion to dismiss, or, in the alternative, to permit service of a verified answer. (NYSCEF Doc No. 9, notice of motion [sequence 1].) Prior to considering respondent's other arguments for dismissal, the court addressed respondent's request for a traverse hearing which was scheduled for August 17, 2026. That same day, the court issued a decision and order denying traverse on respondent's default. (NYSCEF Doc No. 29.) Oral argument on the remaining branches of respondent's motion was heard the next day.

ARGUMENTS

Respondent's argument in chief is that petitioner must demonstrate that at the time the proceeding was commenced, respondent's tenancy had “ended automatically by lapse of time and not by election of the landlord to forfeit the lease for breach of a condition,” and that the lapse of time can only end a tenancy if either the term of the tenancy has come to its natural end or “upon the occurrence of a conditional limitation.” (NYSCEF Doc No. 10, respondent's attorney's affirmation ¶¶ 46-47, quoting Perrotta v W. Regional Off-Track Betting Corp., 98 AD2d 1 [4th Dept 1983].) Respondent contends that a conditional limitation consists of a lease clause that both “gives the landlord the right to early termination of the lease for cause upon notice to the tenant and specifies that the lease shall terminate on the date specified in such notice.” (Id. ¶ 52.) Respondent cites BEC Continuum Owner LLC v Foster, 80 Misc 3d 1233(A) (Civ Ct, Kings County 2023) in support, arguing that in Foster, the court dismissed the proceeding after finding that a lease clause granting the owner permission to terminate a tenancy on 10 days’ notice to the tenant did not constitute a conditional limitation. Respondent argues that Paragraph 17(a) does not state the lease term will automatically end “upon the lapse of a time fixed in that notice,” thus there is no conditional limitation petitioner may rely upon to terminate respondent's lease. (Id. ¶¶ 54-56.)

In opposition, petitioner asserts Paragraph 17 (a) of the parties’ lease agreement sets forth a conditional limitation. (NYSCEF Doc No. 17, petitioner's attorney's affirmation in opposition ¶ 22.) Petitioner contends that “[t]he clear language of the lease itself clearly states that the [p]etitioner has the right to terminate the [r]espondents [sic] lease in the event of certain conditions, in this case creation of a nuisance.” (Id. ¶ 25.) Petitioner argues that the owner's ability to send a notice giving respondent 10 days to cure the default, and its ability to then serve a notice of termination if no cure occurs within the 10 days, distinguishes the lease from that in Foster. (Id. ¶ 26.) In reply, respondent distinguishes the cases cited by petitioner and the lease clauses at issue in those cases.

As set forth in more detail below, notwithstanding that statutory tenant protections supersede and render unenforceable conditional limitation clauses in residential leases, the respondent's motion to dismiss on that basis is granted. The directly relevant and controlling precedent on the issue before the court requires dismissal of this proceeding, without prejudice.

DISCUSSIONDISCUSSION

Conditional Limitation Clauses

Where the lease contains a conditional limitation clause, upon the expiration of the specified date fixed in the notice triggered by the breach of the lease, the lease expires by its own terms, without the need for any additional act by the landlord. (See Binyan Realty Co. v Wenner Bread Products, Inc., NYLJ, Oct. 31, 1988 at 31, col 3 [App Term, 2d Dept, 9th & 10th Jud Dists 1988] [“[A] provision in a lease wherein the term expires after the lapse of time set forth in a notice which is set in motion by landlord because of a prior breach of the lease by tenant, should be considered a conditional limitation rather than a condition.”] [internal citation omitted].) In other words, a conditional limitation by its terms results in the expiration of a lease automatically, and not by the landlord's election.

In TSS-Seedman's, Inc. v Elota Realty Co., 72 NY2d 1024 (1988), the Court of Appeals held that the commercial leases’ provisions which stated that “upon the date specified in” the notice of termination for failure to pay rent, “this lease and the term hereby demised and all rights of the [t]enant under this [l]ease shall expire and terminate,” amounted to a conditional limitation and therefore “provided that if a notice of default were sent, the leases would automatically expire on the happening of a specified contingency, the arrival of the termination date fixed in the notice.” (TSS-Seedman's, Inc., 72 NY2d at 1026.) The Court further observed that

“[u]nder the particular [conditional limitation] clauses here, it is not the tenant's conduct which, at the option of the lessor, operates on the lease to effect its termination as in some termination clauses. Rather, it is by the passage of time—the period of time specified in the termination notice—that the lease automatically comes to an end; without service of a notice specifying the date of expiration of the lease there can be no termination and the lease remains in effect.” (Id. at 1027.)

Likewise, in Perrotta, a commercial landlord-tenant proceeding cited by the Court of Appeals in TSS-Seedman's Inc., the court found that the following lease language created a conditional limitation:

“[I]in case the demised premises shall be deserted or vacated, or if default be made in the payment of the rent or any part thereof as herein specified, or if the Tenant shall fail to comply with any of the statutes, ordinances, rules, orders, regulations and requirements of the Federal, State and Local Governments or of any and all their Departments and Bureaus, applicable to said premises, the Landlord may, if the Landlord so elects, at any time thereafter terminate this lease and the term hereof, on giving to the Tenant five days’ notice in writing of the Landlord's intention so to do, and this lease and the term hereof shall expire and come to an end on the date fixed in such notice as if the said date were the date originally fixed in this lease for the expiration hereof.” (Perrotta, 98 AD2d at 3-4 [emphasis in original].)

Recently, in St. Catherine of Sienna Roman Catholic Church v 118 Convent Assocs., LLC, 44 Misc 3d 8 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014), the Appellate Term, Second Department held that the language in the parties’ commercial lease that upon the tenant's default in paying rent, the landlord could “ ‘at any time thereafter,’ terminate the lease on five days’ notice, ‘and this lease and the terms hereof shall expire and come to an end on the date fixed in such notice as if the said date were the date originally fixed in this lease for the expiration hereof[,]’ ” was a proper conditional limitation upon which the summary holdover proceeding could be brought. (St. Catherine of Sienna, 44 Misc 3d at 10 [emphasis added].)

The necessity for a conditional limitation clause in a commercial lease in order to maintain a summary proceeding has been applied by appellate courts in the residential context. (See Lerner v Johnson, 167 AD2d 372, 374 [2d Dept 1990] [summary proceeding was fatally defective for lack of a conditional limitation, citing TSS-Seedman's and Perrotta]; Fourth Hous. Co., Inc. v Bowers, 53 Misc 3d 43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [no conditional limitation, summary proceeding dismissed, citing Perrotta and St. Catherine of Sienna]; 1900 Albermarle, LLC v Solon, 2017 NY Slip Op 51665[U], 57 Misc 3d 158[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Districts, citing Perrotta and St. Catherine of Sienna].)

Civil Court judges in the Second Department have followed this lead. (See Foster [no conditional limitation established, proceeding dismissed]; 72-15 Realty Co. LLC v Marmol, 70 Misc 3d 199 [Civ Ct, Queens County 2020] [“[I]f a clause in a lease provides that the lease cannot endure beyond the time when a contingency happens, it creates a conditional limitation upon the occurrence of which the lease automatically expires; a summary proceeding will lie to evict a tenant who remains thereafter.”] [internal citation omitted]; Lam Bros. Realty LLC v Torres, 82 Misc 3d 1243[A], 2024 NY Slip Op 50525[U] [Civ Ct, Kings County 2024];² Francilot v Mays, 88 Misc 3d 1260[A], 2026 NY Slip Op 50603[U] [Civ Ct, Queens County 2026].)

In the case at bar, Paragraph 17 (a) of the parties’ lease agreement provides that petitioner “may serve [respondent] with a written notice obligating [respondent] to stop or cure the specified default within ten (10) days,” and that if respondent “does not stop or begin to correct the default within the cure period [o]wner may terminate the lease upon seven (7) days written notice.” Unlike the lease clauses at issue in TSS-Seedman's, Inc., Perrotta, Lerner, and Marmol,³ in the case at bar, Paragraph 17 (a) of the parties’ lease agreement does not comprise a conditional limitation because it provides petitioner with the option of terminating respondent's tenancy if she does not cure the alleged defaults, but does not state that respondent's lease or lease term will automatically expire on the date provided in the notice.

Are Conditional Limitation Clauses Unenforceable in the Rent Stabilized Residential Tenancy Context?4

Although New York City maintains some of the strongest residential tenant protections in the nation, appellate and civil courts in New York City continue to require conditional limitation clauses in residential leases. These holdings are more sensical with regard to residential tenancies outside of New York City prior to the passage of the Housing Stability and Tenant Protection Act of 2019 (“HSTPA”) because until recently, residential tenants outside of New York City did not enjoy the protection of RPAPL 753 (4). (L 1982, ch 870, eff July 29, 1982, as amended by L 2019, ch 36, pt M, § 21, eff June 14, 2019.)

In 1982, the legislature enacted subdivision (4) of RPAPL 753, which requires a court to stay issuance of the warrant to allow a residential tenant an opportunity to cure, and allows a court to exercise its discretion to permanently stay issuance of the warrant against a residential tenant, effectively reviving a lease which has lapsed by the passage of time. (L 1982, ch 870, eff July 29, 1982; Post v 120 E. End Ave. Corp., 62 NY2d 19 [1984].) In 2019, the legislature saw fit to apply RPAPL 753 (4) statewide and increased the mandatory cure period to 30 days. (L 2019, ch 36, pt M, § 21, eff June 14, 2019.) Thus, prior to the 2019 amendments to RPAPL 753 (4), a residential tenant outside of New York City facing a holdover proceeding was limited to the same remedy as a commercial tenant.

In a commercial tenancy, where RPAPL 753 (4) is inapplicable, and no statutory post-judgment stay is available to revive a tenancy, the tenant must obtain a temporary restraining order in Supreme Court prior to the lapse of the time specified in a notice of default in conjunction with a declaratory judgment action seeking a finding that the tenant did not breach the lease. If granted, the injunction preserves the status quo pending a hearing on the action. Should the tenant lose on the merits, it may still cure the default in the remaining time provided in the notice to cure and thereby avoid the landlord's termination of the lease. If the lease has terminated by the lapse of the time specified in the notice prior to respondent obtaining an injunction, or curing the breach, the court is powerless to revive the tenancy. This stay is colloquially known as a “Yellowstone injunction.” (See First Nat'l Stores v Yellowstone Shopping Ctr., 21 NY2d 630 [1968] [reversing the Appellate Division which improperly read into the lease an opportunity to cure after the lease had terminated by the lapse of time specified in the notice to cure, stating “[s]uch a tender emotion must be exerted, if at all, by the parties rather than by the court.”])

The newly enacted RPAPL 753 (4) raised the question of whether the statute had obviated the need for a Yellowstone injunction in residential eviction proceedings. In Post v 120 E. End Ave. Corp., 62 NY2d 19 (1984), a case involving a cooperative corporation on the Upper East Side of Manhattan, the Court of Appeals grappled with this issue. In Post, a psychiatrist was using his residential unit to see patients, which the landlord contended was a breach of the lease which contained a conditional limitation. Dr. Post filed a declaratory action and obtained an order to show cause with a temporary restraining order. The court granted a preliminary injunction in Supreme Court which tolled the expiration of the cure period. The landlord appealed and the Appellate Division affirmed the Supreme Court. The landlord certified the issue at the Court of Appeals. In the interim, the 1982 amendment to RPAPL 753 (4) was enacted. Faced with interpreting the newly added subdivision, the Post Court found that the legislative intent of RPAPL 753 (4) was to authorize the continuation of a residential tenant's lease, superseding the automatic lapse of the lease upon the passage of a specified time as authorized by a conditional limitation. Ultimately, the Court construed the statute to limit the reach of conditional limitation clauses in residential leases and to permit for the revival of same, a remedy that is unavailable in the context of a commercial tenancy. The Court opined:

“Thus, although the lease may contain a conditional limitation which permits it to be terminated if the tenant fails to cure, we interpret the statute as impressing its terms on residential leases and, in effect, authorizing Civil Court at the conclusion of summary proceedings to impose a permanent injunction in favor of the tenant barring forfeiture of the lease for the violation in dispute if the tenant cures within 10 days. Under this interpretation the statute would necessarily protect against any other losses incident to forfeiture[.]” (Id. at 27.)

Invoking “sound policy reasons” for this interpretation of the statute, and noting that “Yellowstone injunctions have impaired the effectiveness of summary proceedings,”⁵ and that a landlord who prevails under a conditional limitation in Supreme Court “must still go into Civil Court to evict the tenant,” if removal cannot be done peaceably,⁶ the Court further opined:

“Under the amended statute the tenant's claims may properly be alleged as defenses to the summary proceedings and complete relief may be obtained in Civil Court. The procedure adopted is expeditious and it permits both parties to avoid the expense and duplication of effort involved in proceeding in two courts.” (Id. at 28.)

Citing to Post, in Hopp v Raimondi, 51 AD3d 726 (2d Dept 2008), a Westchester County case, the Appellate Term, Second Department proposed:

“The 1982 enactment of RPAPL 753(4), which afforded a losing residential tenant a 10—day period to cure lease violations before being subject to removal, has largely eliminated the need for Yellowstone injunctions in New York City. However, since RPAPL 753 (4) applies only in New York City, elsewhere in the State the only time available to a residential tenant within which a lease violation may be cured is the time provided in the notice to cure. Thus, outside the City of New York, the only means to extend the time to cure is injunctive relief ․ which relief must be sought within, and must operate to toll, the cure period provided by lease provision or predicate notice (depending on the type of tenancy at issue) before this period runs and the lease terminates. Otherwise, the courts are powerless to revive the expired lease (emphasis added).” (Id. at 728-729 [internal citations and quotation marks omitted].)

Critically, as noted supra, this is no longer the case as RPAPL 753 (4) now applies to all residential tenants throughout New York State. Perotta, TSS Seedman's, and St. Catherine of Sienna are distinguishable from the instant case in that those cases involved commercial tenancies and were never subject to RPAPL 753 (4).

Johnson and Bowers, are cases that originated outside New York City, and were decided prior to the amendments to RPAPL 753, i.e. prior to the state-wide application of the mandatory post judgment stay, RPAPL 753 (4). In Solon, the Appellate Term, Second Department upheld the civil court which dismissed a holdover petition on the basis that the landlord could point to no “condition” in the tenant's lease requiring the tenant to maintain their Section 8 Housing Choice Voucher program subsidy. (1900 Albemarle v Guy Solon, Index No. 053940/15, Civ Ct, Kings County, Jan 13, 2016, Finkelstein, J., attached hereto) Nowhere in the civil court decision does the court discuss a “conditional limitation” as a grounds for dismissal, and from the arguments memorialized in the decision, it appears that the tenant did not argue for dismissal on the basis that the lease lacked a conditional limitation. The issue before the Housing Court Judge in Solon was whether there had been a breach of a “condition” and not a termination upon a lapse of time, i.e. a conditional limitation. Moreover, the appeals court cites only to what this court views as distinguishable authority, specifically Perrotta and St. Catherine of Sienna, discussed supra.

Additionally, to enforce a conditional limitation lease clause in a rent stabilized tenancy would be contrary to public policy as automatic termination clauses bypass tenant protections embedded in the eviction statutes, e.g. RPAPL 753 (4), not to mention the protections and notice requirements prescribed in the Rent Stabilization Law and RSC. Finally, while this proceeding is not based on nuisance, had it been, recently judicially created protections are available to tenants whose behavior has been adjudicated a nuisance under certain circumstances, e.g. reasonable accommodations. (See 1123 Realty, LLC v Treanor, 2022 NY Slip Op 50138[U], 74 Misc 3d 131[A] [execution of the warrant permanently stayed given tenant's disabilities, and genuine efforts to cure a nuisance]; Prospect Union Associates v DeJesus, 167 AD3d 540 [1st Dept 2018] [proceeding remanded to trial court to determine if tenant entitled to a reasonable stay in the form of a probationary period; CPLR 2201.)

Given the current statutory landscape, the rationale for insisting on a conditional limitation clause in a rent stabilized lease as a prerequisite to maintaining a summary eviction proceeding is increasingly antiquated and difficult to justify. If conditional limitation clauses are effectively unenforceable — and, therefore, meaningless — in the rent-stabilization context, then why should such a clause warrant the dismissal of a summary holdover proceeding brought against a rent-stabilized tenant?

However, it is not for this court to answer this question. This court is constrained by controlling caselaw and the parties’ arguments; therefore, unless and until the appellate courts provide further guidance on how statutory protections interrelate with conditional limitation clauses, the absence of such a clause in the parties’ lease remains fatal to a summary holdover proceedings against rent stabilized tenants, despite its limited practical significance in this context.

CONCLUSION

Accordingly, it is hereby

ORDERED that the branch of respondent's motion seeking dismissal due to the absence of a conditional limitation in the parties’ lease agreement is GRANTED, and the proceeding is dismissed without prejudice.

The remaining branches of respondent's motion are denied as academic.

This constitutes the decision and order of this court.

FOOTNOTES

1.   Paragraph 27 prohibits animals on the premises without the owner's written permission and provides that “[f]ailure to comply with this provision shall be grounds for termination of the tenancy and lease.” NYSCEF Doc No. 13 at 5. Paragraph 38 provides that “[r]enter, their families, guests, employees, or visitors shall not engage in any conduct which makes the apartment or building less fit to live in for [r]enter or other occupants. Renter shall not make or permit any disturbing noises in the apartment or building or permit any conduct to be done that will interfere with the rights, comfort, or convenience of other occupants of the building. Renter shall not play a musical instrument or operate or allow to be operated audio or video equipment so as to disturb or annoy any other occupant of the building.” Id.

2.   In Lam Bros. Realty LLC, the court after trial found the parties’ rent-stabilized lease renewal agreement (the only lease agreement admitted into evidence) did not contain a conditional limitation permitting early termination of the lease. Apropos petitioner's argument that dismissal is not warranted because petitioner followed the strictures of the RSC and RPAPL Article 7, the Torres court opined as follows: “To the extent that [p]etitioner would argue that the [RSC] may be read to provide[ ] grounds for the early termination of a rent-stabilized lease without the need for a conditional limitation in the lease, that argument would be misplaced. First, the [RSC] is properly read as restricting the grounds for eviction, not creating grounds for eviction. The Code precludes eviction ‘except on one or more of the grounds specified in the Code’ (RSC 2524.1[a]). Second, even if the Code did create grounds for eviction, it says nothing about summary proceedings. Summary proceedings are created by RPAPL Article 7, which requires a conditional limitation without exception. Petitioner is not prevented from seeking [r]espondents’ eviction in an ejectment action, which does not require a conditional limitation.” Torres, 2024 NY Slip Op 50525(U), *1-2.

3.    TSS-Seedman's, Inc., 72 NY2d at 1026 (“conditional limitation found in lease clause providing “ ‘upon the date specified in such notice this lease and the term hereby demised and all rights of the (t)enant under this (l)ease shall expire and terminate.’ ”); Perrotta, 98 AD2d at 3-4 (same where lease provided that “(l)andlord may, if the (l)andlord so elects, at any time thereafter terminate this lease and the term hereof, on giving to the (t)enant five days’ notice in writing of the (l)andlord's intention so to do, and this lease and the term hereof shall expire and come to an end on the date fixed in such notice as if the said date were the date originally fixed in this lease for the expiration hereof.”); Lerner, 167 AD2d at 374 (same where lease provided that landlord could “ ‘at their option, on not less than five days notice in writing terminate this lease, and this lease and the term thereof shall automatically cease and determine (sic) at the expiration of the said five-day period.’ ”); Marmol, 70 Misc 3d at 201-204 (same where lease provided that landlord may serve a notice to cure and subsequent six day notice of termination, and finding that language providing that “(a)t the end of this 6-day period, this [l]ease will end and [y]ou must move out of the Apartment” is “a mechanism for automatic expiration at the end of the second notice period(.)

5.   Notwithstanding that RPAPL 753 (4) does not categorically preclude a rent stabilized tenant from seeking a Yellowstone stay upon a proper showing that there is ample need to invoke the general jurisdiction of Supreme Court, Yellowstone injunctions in the residential context are even more rare after passage of the amended statute and generally unnecessary. See e.g. Sinsheimer v Park & 66th Corp., 212 AD3d 446, 447 (1st Dept 2023) (residential tenants’ motion for a Yellowstone injunction denied as “[t]he subject lease is not a commercial lease, but a residential proprietary lease. Residential tenants generally rely on the protections of RPAPL 753 (4) via a summary proceeding except for limited circumstances where the statutory remedy is determined to be inadequate (internal citations omitted).

6.   Moreover, recent appellate authority reaffirms the long-standing rule that commercial landlords may regain possession through peaceable self-help where the lease provides for automatic termination of the tenancy upon the lapse of time. Nolan v Edison Prop. Investing, LLC, 249 AD3d 1066, 1068 (2d Dept 2026). By contrast, self-help eviction in the residential context is strictly prohibited and a landlord enforcing a conditional limitation clause through self-help would be subject to criminal and civil penalties. RPAPL 768; RPAPL 853.

Karen May Bacdayan, J.