HUDSON RIVER PARK TRUST v. BASKETBALL CITY USA LLC

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Supreme Court, Appellate Division, First Department, New York.

HUDSON RIVER PARK TRUST, Plaintiff-Respondent, v. BASKETBALL CITY USA, LLC, Defendant-Appellant.

Decided: October 27, 2005

TOM, J.P., MAZZARELLI, FRIEDMAN, CATTERSON, McGUIRE, JJ. Warshaw Burstein Cohen Schlesinger & Kuh, LLP, New York (Bruce H. Wiener of counsel), for appellant. Konner Teitelbaum & Gallagher, New York (Brian P. Gallagher of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Harold B. Beeler, J.), entered May 27, 2005, which, inter alia, awarded possession of Pier 63 at West 23rd Street to plaintiff and granted plaintiff's motion for a writ of assistance directing the City Marshall or any Sheriff of the City of New York to remove defendant from the premises, unanimously affirmed, with costs.

 As we have previously held (17 A.D.3d 273, 792 N.Y.S.2d 899 [2005] ), the governing lease unambiguously provided that it was to expire on December 31, 2004.   Defendant explicitly agreed that it would not seek to extend the lease and there is no evidence that plaintiff intended to permit defendant's occupancy beyond the lease term on a month-to-month basis.   That plaintiff's clerks unwittingly deposited to plaintiff's account a check from defendant bearing the notation “1/05,” did not, under the circumstances of this case give rise to a month-to-month tenancy.   Inasmuch as the court's final order and judgment affected the possession, enjoyment or use of real property, and directed delivery of possession of the property to the party entitled to it, the court's issuance of a writ of assistance pursuant to RPAPL 221 was appropriate.

We have considered defendant's remaining contentions and find them unavailing.