Fourth Hous. Co., Inc. v. Voogt

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 23, 2016
• Docket: 2016 NYSlipOp 51034(U)
• Status: Published

Opinion

Fourth Housing Company, Inc., Appellant,

against

Thierry Voogt, Respondent, and "John Doe" and "Jane Doe," Undertenants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Inez Hoyos, J.), dated October 1, 2014. The order denied landlord's motion for summary judgment in a holdover summary proceeding.

ORDERED that the order is affirmed, without costs, and, upon searching the record, summary judgment is awarded to tenant dismissing the petition.

Landlord, a Mitchell-Lama housing corporation, brought this holdover proceeding alleging that it had terminated the tenancy in accordance with a provision of the lease referred to as the "chronic non-payment rule." Landlord moved for summary judgment, and the Civil Court denied that motion.

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 (see Perrotta v Western Regional Off-Track Betting Corp., 98 AD2d 1 [1983]; St. Catherine of Sienna Roman Catholic Church, at St. Albans, Queens County v 118 Convent Assoc., LLC, 44 Misc 3d 8, 11 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). For the reasons stated in Fourth Hous. Co., Inc. v Bowers (___ Misc 3d ___, 2016 NY Slip Op ______ [appeal No. 2015-401 Q C], decided herewith), we find that the lease provision in question constitutes a condition and not a conditional limitation, and therefore this holdover proceeding does not lie.

Accordingly, the order is affirmed and, upon searching the record, summary judgment is awarded to tenant dismissing the petition without prejudice to landlord's commencement of an ejectment action.

Pesce, P.J., and Aliotta, J., concur.

Weston, J., concurs in part and dissents in part in a separate memorandum.

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON and ALIOTTA, JJ.
FOURTH HOUSING COMPANY, INC.,

Appellant,

against-

NO. 2015-209 Q C

DECIDED

THIERRY VOOGT,

Respondent,

and-
"JOHN DOE" and "JANE DOE,"

Undertenants.

Weston, J., concurs in part and dissents in part and votes to affirm the order in the following memorandum:

For the reasons stated in my partial dissent in Fourth Hous. Co., Inc. v Bowers (___ Misc 3d ___, 2016 NY Slip Op ______ [appeal No. 2015-401 Q C], decided herewith), I would affirm the order.

Decision Date: June 23, 2016