47 05 SPE LLC v. Narul A. Hack, Appellant, "John Doe," and "Jane Doe," Undertenants. (2026)

ORDERED that, on the court's own motion, the notice of appeal from the decision dated May 28, 2025 is deemed a premature notice of appeal from the final judgment entered July 9, 2025 (see CPLR 5520 [c]); and it is further,

ORDERED that the final judgment, insofar as appealed from, is affirmed, without costs.

Landlord commenced this holdover proceeding to recover possession of, and rent for, a non-rent-stabilized apartment, for which landlord alleged tenant had ceased paying rent prior to the termination of the lease, and to recover use and occupancy for the period after the termination of the lease. The written lease dated November 20, 2020, as subsequently extended, was scheduled to expire on December 31, 2023. On December 6, 2023, landlord served tenant with a 90-day notice signifying landlord's intention not to renew the lease, which required tenant to vacate the premises by March 11, "2023" [sic]. On January 22, 2024, prior to its commencement of this holdover proceeding, landlord commenced a nonpayment proceeding. Thereafter, on May 3, 2024, landlord filed its notice of petition and petition in this holdover proceeding, but did not serve tenant until July 3, 2024. On July 15, 2024, the parties stipulated to the discontinuance of the nonpayment proceeding. By order dated October 15, 2024, the Civil Court (Clinton J. Guthrie, J.) denied tenant's motion to dismiss the petition based on landlord's alleged failure to serve a proper predicate notice. By order dated December 11, 2024, the Civil Court (Clinton J. Guthrie, J.) denied tenant's motion for summary judgment dismissing the petition based on landlord's commencement of the nonpayment proceeding after service of the 90-day nonrenewal notice and prior to the commencement of this holdover proceeding, and simultaneous maintenance of both proceedings. Following an April 2025 nonjury trial, the Civil Court (Logan J. Schiff, J.) issued a decision dated May 28, 2025 awarding landlord a final judgment of possession, without any monetary award, and specifically dismissing, without prejudice, landlord's claim for use and occupancy. A final judgment was entered on July 9, 2025, pursuant to the decision.¹

On this appeal, tenant challenges the Civil Court's October 15, 2024 and December 11, 2024 orders. This court, on its own motion, previously dismissed tenant's direct appeals from those orders because a final judgment had been entered. Tenant's current appeal, deemed from the final judgment as no appeal lies from a decision (see Deutsche Bank Natl. Trust Co. v Lawson, 244 AD3d 922, 922 [2025]; see also CPLR 5520 [c]), brings up for review the order dated October 15, 2024 denying tenant's motion to dismiss the petition (see Costea v Vemen Mgt. Corp., 213 AD3d 634, 636 [2023]). We need not address whether this appeal also brings up for review the order dated December 11, 2024 denying tenant's motion for summary judgment since the subject of that motion was subsequently litigated at trial and addressed in the court's decision (see Bonczar v American Multi-Cinema, Inc., 38 NY3d 1023 [2022]).

Tenant argues that the October 15, 2024 order denying his motion to dismiss the petition should have been granted as landlord's nonrenewal notice was facially defective because it contained a date that predated the date of the notice and thus failed to afford tenant 90 days to vacate the premises. "In evaluating the facial sufficiency of a predicate notice in a summary eviction proceeding, the appropriate test is one of reasonableness in view of the attendant circumstances" (Oxford Towers Co., LLC v Leites, 41 AD3d 144, 144 [2019]; see Hughes v Lenox Hill Hosp., 226 AD2d 4, 18 [1996]). A "typographical error in the notice" typically does not render it ineffective if it "could not have materially misled or confused the tenant or hindered the preparation of his defense" (Oxford Towers Co., LLC v Leites, 41 AD3d at 145; see Bosco v Merle, 24 Misc 3d 139[A], 2009 NY Slip Op 51630[U], *1 [App. Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009] ["Ordinarily, a de minimis defect in a predicate notice or petition that does not confuse the tenants or hinder their defense is to be overlooked"]).

Here, landlord's 90-day nonrenewal notice contained an obvious typographical error, as it specified a date for tenant to vacate the premises that was 9 months prior to the date of the notice. However, the notice correctly identified the date on which the lease was scheduled to expire, and landlord did not commence the holdover proceeding until more than 90 days after its service of the notice. This was the sort of de minimis defect in a predicate notice that could not have confused tenant, and there is no indicia of misconduct that would compel us to conclude otherwise. Tenant's motion to dismiss was therefore properly denied.

Tenant also contends that landlord's commencement of its nonpayment proceeding after service of a 90-day nonrenewal notice and prior to the commencement of this holdover proceeding, and simultaneous maintenance of both proceedings, vitiated the nonrenewal notice and necessitated the dismissal of this holdover proceeding. Although landlord filed its notice of petition and verified petition in this holdover proceeding on May 3, 2024, landlord did not serve tenant until July 3, 2024, thus the nonpayment and holdover proceedings only overlapped for 12 days. Moreover, landlord's nonpayment proceeding was commenced before the holdover proceeding and before the expiration of the tenancy, sought only the rental amounts owing prior to the termination of the lease, and was voluntarily discontinued by the parties without proceeding to a final judgment. Upon this record, there is no indication that landlord's commencement of the nonpayment proceeding signified an intention to vitiate its 90-day nonrenewal notice or ratify the lease (see Matter of Georgetown Unsold Shares, LLC v Ledet, 130 AD3d 99, 103-105 [2015]; Pimor Assoc., LLC v Delvalle, 85 Misc 3d 128[A], 2025 NY Slip Op 50174[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]; Azour, LLC v Tax Sister, Inc., 29 Misc 3d 29, 32 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

After the trial, the Civil Court dismissed, without prejudice, landlord's use and occupancy claim for lack of proof. On appeal, tenant argues that the dismissal should have been with prejudice. While a judgment dismissing a cause of action at the close of the proponent's evidence is with prejudice unless the judgment specifies otherwise (see CPLR 5013), and a dismissal "without prejudice to the recommencement of a new action, is 'sparingly exercised' " (Emigrant Bank v Solimano, 209 AD3d 153, 164 [2022], quoting Palmer v Fox, 28 AD2d 968, 968 [1967], affd 22 NY2d 667 [1968]), we find, under the particular circumstances presented here, that it was not an improvident exercise of discretion for the Civil Court to have specified that the dismissal of landlord's use and occupancy cause of action was to be without prejudice (see Giglio v Haber, 19 AD2d 793, 793 [1963]; Rimi v Jacaruso, 27 Misc 3d 132[A], 2010 NY Slip Op 50697[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]).

Finally, contrary to tenant's argument, the lease was properly authenticated at trial (see Knight v New York & Presbyt. Hosp., 42 NY3d 699, 704 n 1 [2024]; Service Alliance, Inc. v Betesh, 52 Misc 3d 131[A], 2016 NY Slip Op 50966[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; All Borough Group Med. Supply, Inc. v GEICO Ins. Co., 43 Misc 3d 27, 28 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the final judgment, insofar as appealed from, is affirmed.

BUGGS, J.P., MUNDY and LIN, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: August 7, 2026

FOOTNOTES

1.   Neither the final judgment nor the May 28, 2025 decision addresses landlord's claim for rent. Moreover, the Civil Court only addressed the claim for "use and occupancy" through April 2024 at the trial. At the conclusion of the trial, landlord requested a final judgment of possession and "all use and occupancy that has accrued to date" — i.e., through April 2025.