570121/12. 145 EAST 16TH STREET LLC, pet-land-res, v. LYNORE SPENCER a/k/a LENORE SPENCER, res-tenapp, -and- DANA SPENCER, DAVID GERSTENHABER, “JOHN DOE,” and “JANE DOE,” res-und-app — Ordered that the motion is granted to the extent of granting appellant leave to appeal as a poor person. Seymour W. James, Jr., Esq., of the Legal Aid Society, Criminal Appeals Bureau (199 Water Street, 3rd Floor, NY, NY 10038, tel# 212 577-3688) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. So Order — Order (Sheldon J. Halprin, J.), dated April 12, 2013, insofar as appealed from, affirmed, with $10 costs.
We sustain the denial of tenant’s dismissal motion. Landlord’s commencement and short-lived prosecution of separate, but identical nonpayment proceedings did not nullify the previously served termination notice underlying this 2010 nonprimary residence holdover proceeding (see 1251 Ams. Assoc. II, L.P. v. Rock 49th Rest. Corp., 13 Misc 3d 142[A], 2006 NY Slip Op 52282[U] [App Term, 1st Dept 2006]). It need be emphasized that the nonpayment proceedings were commenced after this holdover proceeding was dismissed on tenant’s motion, but prior to this Court’s reversal of the dismissal order and reinstatement of the holdover petition (see 145 E. 16th St. LLC v. Spencer, 36 Misc 3d 128[A], 2012 NY Slip Op 51199[U] [App Term, 1st Term 2012]); and the nonpayment proceedings were either discontinued by landlord or dismissed without prejudice by the court (see Bridge Hardware Co. v. Disosway & Fisher, 199 Misc 259 [1950], affd 278 App Div 812 [1951]). Given landlord’s continued prosecution of its (ultimately successful) appeal from the dismissal order, it cannot reasonably be said that landlord intended to, or did, reinstate the tenancy. The creation of a landlord tenant relationship “only arises from a legitimate manifestation of intent on the part of the parties to create such a relationship” (Coleman v. Dabrowski, 163 Misc 2d 763, 765 [1994]), and “should not be reduced to a matter of gamesmanship, seduction and artifice” (id.), or be made to hinge on “gotcha” litigation tactics (see FS 41 45 Tiemann Place LLC v. Estrella, 38 Misc 3d 29, 30 [2012]).
