Marsam Realty 13th Ave., LLC v. Bagels 'N' Greens BP, LLC

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 23, 2018
• Docket: 2018 NYSlipOp 50419(U)
• Status: Published

Opinion

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<br><br><div align="center"><b><font size="+1">Marsam Realty 13th Avenue, LLC, Respondent,  

<br><br>against<br><br>Bagels 'N' Greens BP, LLC, Appellant, et al., Undertenants.

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Kera &amp; Graubard (Martin S. Kera of counsel), for appellant.

Sperber, Denenberg &amp; Kahan, P.C. (Seth Denenberg of counsel), for respondent.

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<p>Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Richard Montelione, J.), entered March 9, 2016. The final judgment, after a nonjury trial, awarded landlord possession in a holdover summary proceeding.</p>

<p>ORDERED that the final judgment is affirmed, without costs.</p>

<p>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.</p>

<p>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 <i>Yellowstone</i> injunction (<i>see First Nat. Stores v Yellowstone Shopping Ctr.</i>, 21 NY2d 630 [1968]), and that landlord had served a notice to terminate the lease. Tenant's sole contentions on appeal do not constitute defenses to the proceeding.</p>

<p>Accordingly, the final judgment is affirmed.</p>

<p>PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.</p>

<br>ENTER:<br>Paul Kenny<br>Chief Clerk<br>Decision Date: March 23, 2018

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