MARSAM REALTY 13TH AVENUE LLC v. BAGELS GREENS BP LLC (2018)

ORDERED that the final judgment is affirmed, without costs.

In this commercial holdover proceeding, landlord seeks to recover possession based upon its termination of tenant's lease due to tenant's failure to cure a breach thereof. The breach resulted from tenant's installation of an exterior ventilation system without landlord's prior written consent and without obtaining the required permits and approvals from governmental agencies. After a nonjury trial, the Civil Court awarded possession to landlord.

The testimony adduced at trial established that tenant did not obtain the required permits or governmental approvals prior to or after the installation of the ventilation system and that this constituted a breach of the lease. Landlord also established that, although tenant had been served with a notice to cure, tenant had failed to cure the alleged violations and did not seek a Yellowstone injunction (see First Nat. Stores v. Yellowstone Shopping Ctr., 21 NY2d 630 [1968]), and that landlord had served a notice to terminate the lease. Tenant's sole contentions on appeal—that the trial court was obligated to determine if there was an alternative remedy which could have preserved the tenancy and that landlord used tenant's undisputed breach of the lease as a pretext to evict tenant so that landlord could charge a new tenant a greater rent—do not constitute defenses to the proceeding.

Accordingly, the final judgment is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.