By: Ling-Cohan, J.P., Cooper, Edmead, JJ.18-169. 304 PAS OWNER LLC, pet-lan-app, v. LIFE EXTENSION REALTY LLC, res-ten-res, -and- PATH MEDICAL P.C. AND TOTAL HEALTH NUTRIENTS, INC., add res-unt-res -and- BIOREFERENCE LABORATORIES, add res-unt — Order (Joan M. Kenney, J.), dated December 21, 2017, insofar as appealed from, reversed, with $10 costs, additional respondents-undertenants motion denied, petition reinstated as to said additional respondents-undertenants, landlord’s cross motion for summary judgment of possession granted, landlord’s claims for rent, additional rent and/or use and occupancy accruing prior to April 1, 2017 severed, on consent, and matter remanded to Civil Court for a determination of landlord’s claims for use and occupancy accruing on or after April 1, 2017. Execution of the warrant of eviction shall be stayed for 30 days from the service of a copy of this order with notice of entry.The motion by additional respondents-undertenants’ for summary judgment dismissing the holdover petition should have been denied. The “30-day notice provision of Real Property Law §232-a is applicable only to…the immediate tenant of the lessor” (170 W. 85th St. Tenants Assn. v. Cruz, 173 AD2d 338, 339 [1991]) and an undertenant, whether licensee, subtenant or occupant, need not be served with the notice of termination (see e.g., 539 W 156, L.L.C. v. Hernandez, 55 Misc 3d 144[A], 2017 NY Slip Op 50663[U][App Term, 1st Dept 2017]).Civil Court should have granted landlord’s cross motion for summary judgment of possession. “Although successive motions for summary judgment are disfavored, a subsequent summary judgment motion may be properly entertained when it is substantively valid and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts” (Graham v. City of New York, 136 AD3d 747, 748 [2016], lv denied 27 NY3d 907 [2016]; see L.E.K. Consulting LLC v. Menlo Capital Group, LLC, 148 AD3d 527 [2017]). Here, landlord’s cross motion was substantively valid and conclusively established, inter alia, that the governing commercial lease agreement expired by its terms on July 31, 2016, and that respondents had no right of continued occupancy of the commercial premises. In opposition, respondents failed to raise any triable issue of fact regarding possession.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.July 2, 2018
By: Ling-Cohan, J.P., Cooper, Edmead, JJ.18-151. 811 WALTON TENANTS CORP., pet-lan-app, v. 811 WALTON RESCUE LLC, res-ten-res, -and- THOMAS SMITH, res-unt — Order (Elizabeth J. Yalin Tao, J.), dated November 16, 2017, affirmed, with $10 costs.Civil Court properly granted tenant’s motion for summary judgment dismissing the holdover petition. The undisputed evidence establishes that the cooperative landlord failed to follow the requisite procedures, set forth in paragraph 31 of the proprietary lease, in terminating the lease based upon tenant’s “noncurable” objectionable conduct (see 40 W. 67th St. v. Pullman, 100 NY2d 147, 155-156 [2003]; 1050 Tenants Corp. v. Lapidus, 39 AD3d 379, 383 [2007], lv denied 9 NY3d 807 [2007]; Breezy Point Coop., Inc. v. Young, 16 Misc 3d 101, 104 [2007]), including obtaining authorization by a vote of two-thirds of the board of directors at a meeting called for that purpose (Paragraph 31[f]) (see Gordon v. 476 Broadway Realty Corp., 129 AD3d 547, 548 [2015]; Lincoln Guild Hous. Corp. v. Ovadiah, 49 Misc 3d 147[A], 2015 NY Slip Op 51691[U][App Term, 1st Dept 2015]). We reject landlord’s contention that it has the power to terminate the lease based upon objectionable conduct absent compliance with the procedures set forth in paragraph 31 (see 40 W. 67th St. Corp. v. Pullman, 100 NY2d at 155-156).In light of this determination, landlord’s cross motion was properly denied as moot.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.July 2, 2018
