MEO 478 LLC v. Y7 LLC (2026)

Respondent Y7 Management LLC ("respondent") moved pursuant to CPLR 3211 (a) (1) and (7) to dismiss this commercial holdover proceeding, claiming that petitioner vitiated its notice of cancellation by accepting rent and continuing to solicit payments after the stated termination date. The motion is denied.

Facts

Respondent occupies the commercial premises at 478 Bergen Street, Brooklyn, under a lease dated May 31, 2019, for a term ending June 30, 2029. Petitioner MEO 478 Bergen Street LLC ("petitioner") alleges that respondent failed to cure a default in rent payments after service of a notice to cure. Petitioner then served a three-day notice of cancellation on January 28, 2026, terminating the tenancy effective February 9, 2026, in accordance with section 17 of the lease. That section provides: "If (a) Tenant shall make default in the payment of the rent ... or in making any other payment herein required and such default remains uncured for five (5) days following written notice thereof from Owner or Owner's agents ... then Owner may serve a written three (3) days' notice of cancellation of this lease upon Tenant, and upon the

expiration of said three (3) days, this lease and the term thereunder shall end and expire as fully and completely as if the expiration of such three (3) day period were the day herein definitely fixed for the end and expiration of this lease and the term thereof and Tenant shall then quit and surrender the demised premises to Owner but Tenant shall remain liable as hereinafter provided." Respondent remained in possession, and petitioner brought this proceeding.

Petitioner commenced this proceeding by filing the notice of petition and petition on February 26, 2026. The notice of petition and petition were reportedly served on March 25, 2026. The parties acknowledge a payment in late February 2026, after the stated termination date and before the notice of petition and petition were served on March 25, 2026. Respondent argues that petitioner's solicitation and acceptance of that payment during the "window period" together with subsequent demands for rent, recognized a continuing tenancy.¹ Petitioner maintains that the payment was credited to October 2025 arrears and invokes paragraph 24 of the lease, which provides: "The receipt by owner of rent with knowledge of the breach of any covenant of this lease shall not be deemed a waiver of such breach and no provision of this lease shall be deemed to have been waived by Owner unless such waiver be in writing signed by Owner. No payment by Tenant or receipt by Owner of a lesser amount than the monthly rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, that acceptance of rent with knowledge of a breach does not waive that breach and that a waiver of a lease provision must be in writing signed by the owner."

Discussion

A motion to dismiss may be granted under CPLR 3211(a)(7) only when upon affording the complaint a liberal construction, presuming the facts alleged to be true, and affording plaintiff the benefit of every favorable inference, the court finds that the facts as alleged do not fit within any cognizable legal theory. Wilber v. Borgen, 248 AD3d 844, 847 (2026). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss." Id. The question is whether plaintiff has a cause of action, not whether plaintiff has stated one and, "unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate." Katz v. DePaola, 211 AD3d 1020, 1021 (2d Dept. 2022).

A motion to dismiss pursuant to CPLR 3211(a)(1) on the ground that a defense is founded on documentary evidence may be granted "only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law." Leon v. Singh, 247 AD3d 867, 869 (2d Dept. 2026). "To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable." Id. Respondent's submissions do not meet either standard.

A holdover proceeding based upon a landlord's termination of a lease may only be maintained where there is a conditional limitation in the lease providing for its early termination. Fourth Hous. Co., Inc. v Bowers, 53 Misc 3d 43, 44, 39 N.Y.S.3d 350 (App. Term 2d Dept. 2016). See also, 72-15 Realty Co. LLC v Marmol, 70 Misc 3d 199, 202, 134 N.Y.S.3d 138 (Civ. Ct. Queens County 2020) ("Put simply, a conditional limitation contains both the basis and the means by which a lease may be terminated prior to its natural expiration."). "If 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." Perrotta v. Western Regional Off-Track Betting Corp., 98 AD2d 1, 2, 469 N.Y.S.2d 504 (4th Dept. 1983). See also, TSS-Seedman's, Inc. v. Elota Realty Co., 72 NY2d 1024, 1026, 531 N.E.2d 646, 534 N.Y.S.2d 925 (1988). To be deemed a conditional limitation, the lease must "state clearly that it will expire upon the happening of some objective event." 71st St.-Lexington Corp. v. Frankel, 2025 NY Slip Op 50425[U], 2025 NY Misc. LEXIS 1909,*5-6, 85 Misc 3d 1245[A], 229 N.Y.S.3d 896 [Sup. Ct. NY Co. 2025]. Once the contingency occurs, the lease "automatically expires, and no other act is necessary to end it." Id. As this court previously held in 1183 Broadway LLC v. 7Alwaysandforever6 LLC, 2026 NY Misc. LEXIS 9571, *4-6 (Civ. Ct. 2026), this court finds that paragraph 17(1) of the lease constitutes a conditional limitation. It requires a five-day notice to cure; if the default is not cured, it authorizes a three-day notice of cancellation; and it expressly provides that upon expiration of the cancellation notice, "this lease and the term thereunder shall end and expire as fully and completely as if" that date were the lease's stated expiration date.

Paragraph 24's "No Waiver" clause provides that "acceptance of rent with knowledge of a breach does not waive that breach and that a waiver of a lease provision must be in writing signed by the owner." This language is "clear and unambiguous," and the parties "having mutually assented to its terms, the clause should be enforced to preclude a finding of waiver of the conditions precedent to renewal." Jefpaul Garage Corp. v. Presbyterian Hosp. in NY, 61 NY2d 442, 446 (1984). "While waiver may be inferred from the acceptance of rent in some circumstances, it may not be inferred, and certainly not as a matter of law, to frustrate the reasonable expectations of the parties embodied in a lease when they have expressly agreed otherwise." VRA Family L.P. v Salon Mgt. USA, LLC, 183 AD3d 614, 615-616 (2d Dept. 2020). Furthermore, RPAPL 711 (1) specifically states that "[a]cceptance of rent after commencement of [a holdover proceeding] shall not terminate such proceeding." See, Pimor Assocs., LLC v. Delvalle, 2025 NY Misc. LEXIS 772, *2 (App. Term 2d Dept. 2025) ("Under the circumstances presented, service of the rent demands during the course of an ongoing trial did not vitiate this holdover proceeding"). Thus, acceptance of the February payment, standing alone, did not establish that petitioner abandoned its right to pursue the alleged default.

However, a non-waiver provision of a lease does not conclusively preclude a finding of waiver. In Diversified Bldg. Co., LLC v. Nader Enters., LLC, 243 AD3d 542, 544 (2d Dept. 2025), the landlord's reliance solely on such a provision was insufficient to obtain dismissal of the tenant's waiver defense under CPLR 3211 (b). A waiver can occur when there is "such conduct or failure to act as to evince an intent not to claim the purported advantage." Matter of Georgetown Unsold Shares, LLC v Ledet, 130 AD3d 99, 104 (2d Dept. 2015). The holding in Diversified Bldg. Co., LLC. preserves a potentially meritorious defense; it does not establish the defense as a matter of law on a tenant's motion to dismiss the petition.

During the window period, petitioner's conduct may have evinced an intent not to "claim the purported advantage" of the no-waiver clause. In particular, during that period, petitioner repeatedly solicited payment. On February 24, its agent acknowledged one month's payment and requested the remaining two months; on March 4, he requested payment of three months' rent. The ledger records a $15,070 payment on February 25. Although petitioner contends that this payment satisfied October 2025 arrears, the ledger does not expressly establish that allocation. This court therefore considers the motion on the premise that petitioner knowingly solicited and accepted payment after the stated termination date, notwithstanding the contrary allegations in paragraphs 7 and 13 of the petition. Those acts materially support respondent's position, but must be considered with the remaining communications and the lease. On January 29, petitioner's agent conditioned avoidance of surrender on payment of the full balance; on February 20, he warned of an impending court date; and on March 17, he stated that legal proceedings were underway. Read together, the submissions permit competing inferences concerning whether petitioner recognized a continuing tenancy or pursued outstanding payments while maintaining its demand for possession. The no-waiver provision in Paragraph 24 of the lease does not conclusively defeat respondent's defense, but neither do the solicitation and receipt of payment conclusively establish waiver or an agreement creating a new tenancy.

Conclusion

Dismissal under CPLR 3211 (a) (1) or (7) is unwarranted because respondent's submissions neither conclusively establish that petitioner's conduct vitiated the cancellation notice or created a new tenancy nor demonstrate that petitioner lacks a cognizable claim for possession. Accordingly, respondent's motion to dismiss pursuant to CPLR 3211 (a) (1) and (7) is denied in its entirety. The proceeding shall continue for determination of the remaining issues.

This constitutes the decision and order of the Court.

Dated: September 22, 2026

Hon. Tehilah H. Berman

Judge of the Civil Court, Kings County

FOOTNOTES

1.   The "window period" has been defined as the period between the expiration date of the lease and the commencement of the holdover proceeding. Matter of Georgetown Unsold Shares, LLC v Ledet, 130 AD3d 99, 104 (2d Dept. 2015).

Tehilah H. Berman, J.