ANTHI NEW NEOCRONON CORP v. COALITION OF LANDLORDS HOMEOWNERS AND MERCHANTS INC (2021)

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED the appeal from so much of the order dated May 15, 2020 as denied tenant's motion to dismiss the petition is dismissed, as the right of direct appeal therefrom terminated with the entry of the final judgment (see Matter of Aho, 39 NY2d 241, 248 [1976]); and it is further,

ORDERED that the final judgment is reversed, without costs, so much of the order dated May 15, 2020 as denied tenant's motion to dismiss the petition and so much of the order dated June 30, 2020 as, upon renewal, granted landlord's cross motion for summary judgment are vacated, tenant's motion to dismiss the petition is granted and, upon renewal, landlord's cross motion for summary judgment is denied as moot.

In this commercial holdover proceeding, the petition alleged that the rent was “payable on the 1st day of each month” and that the tenancy was month-to-month and had been terminated as of June 19, 2019 pursuant to a 90-day “notice to quit” (in effect, a notice of termination). Tenant moved to dismiss the petition alleging, among other things, that a 2002 rider purportedly extending the lease through 2054 prevented termination and therefore the tenancy was not month-to-month, and that the notice was ineffective. Landlord cross-moved for summary judgment. In an order dated May 15, 2020, the District Court denied both motions. Tenant appeals from so much of the order as denied its motion to dismiss the petition.

After landlord commenced this proceeding, tenant commenced a declaratory judgment action in Supreme Court, Suffolk County, seeking, among other things, a declaration that the 2002 lease rider was enforceable. In an order dated May 12, 2020, the Supreme Court, among other things, granted landlord's motion to dismiss the action, finding that the 2002 rider was unenforceable as a matter of law. Subsequently, landlord moved in the District Court for leave to renew its cross motion for summary judgment. By order dated June 30, 2020, based upon the May 12, 2020 Supreme Court order, the District Court, upon renewal, granted landlord's cross motion. A final judgment was entered on September 9, 2020, awarding landlord possession.

Contrary to tenant's contention, the Supreme Court's order precludes any defense based upon the 2002 rider in this proceeding (see Ryan v New York Tel. Co., 62 NY2d 494, 500-501 [1984]; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]). Consequently, as landlord argues, this was a month-to-month tenancy.

However, tenant correctly argues that the predicate notice was invalid. Real Property Law § 232-b provides that a month-to-month tenancy outside the City of New York may be terminated upon a landlord notifying the tenant at least one month before the expiration of the term of such election to terminate. In order for such notice to effectively terminate the tenancy, the notice “must terminate the tenancy at the expiration of the rental month” (Avalonbay Communities, Inc. v Betts, 4 Misc 3d 133[A], 2004 NY Slip Op 50750[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2004]; see Sills v Dellavalle, 9 AD3d 561 [2004]; Best v Buday, 15 Misc 3d 139[A], 2007 NY Slip Op 50987[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2007]). It was undisputed that the tenancy period began on the first day of each month and that the termination notice purported to terminate the tenancy as of June 19, 2019, as opposed to June 30, 2019, the date the rental month expired. The notice was therefore defective (see Best, 2007 NY Slip Op 50987[U]; Avalonbay Communities, Inc., 2004 NY Slip Op 50750[U]), requiring the dismissal of the petition.

We reach no other issue.

Accordingly, the final judgment is reversed, so much of the order dated May 15, 2020 as denied tenant's motion to dismiss the petition and so much of the order dated June 30, 2020 as, upon renewal, granted landlord's cross motion for summary judgment are vacated, tenant's motion to dismiss the petition is granted and, upon renewal, landlord's cross motion for summary judgment is denied as moot.

EMERSON, J.P., DRISCOLL and VOUTSINAS, JJ., concur.