Petitioner commenced this commercial holdover action seeking to recover the commercial premises located at 8 West 1st Street, Mt. Vernon, NY claiming that respondent’s month to month sub-tenancy has expired and she is no longer entitled to possession.A trial was held in this matter on July 25, 2018. The parties were directed to submit posttrial Memorandum of Law by August 8, 2018. Counsel for respondent filed a Memorandum of Law on August 8, 2018. Counsel for petitioner did not file any post trial papers.The credible evidence and testimony at trial established that Frank De Leonardis is the owner of the subject commercial premises. On February 10, 2014, Mr. De Leonardis as landlord, and petitioner and Abdoul Saibou as co-tenants, entered into a lease agreement (“master lease”) for the premises located at 2-4 South Fourth Avenue a/k/a 2-10 West First Street, Mount Vernon, NY for a term commencing on February 10, 2014 and ending on January 31, 2024. The Rider to the master lease grants the tenants permission to sublease the premises subject to the following provision:SUBLET — Tenant shall have the right to sublet up to 33 1/3 percent of 7,000leased space. Any agreement with subtenant shall be in writing and shall be approved by the building owner.In 2015, respondent entered into a sublease agreement for usage of a portion of the premises, which term commenced on January 1, 2015 and expired in December 2016. That sublease was submitted into evidence and provides in pertinent part, “Sub-lease agreement between Abuki Alidu & Abdoul K. Salibou as tenants of the building…and Haddy Senegambia.” The sublease provided that “[a]ll provisions of the master lease for the building dated February 10, 2014 between Frank DeLeonardis as landlord and above mentioned tenant shall apply to sub-tenant….” The sublease was executed by petitioner, respondent and Mr. DeLeonardis. The signature line for Mr. Saibou was blank. Petitioner maintains that respondent’s sublease was not renewed, and respondent is in occupancy as a month-to-month tenant.Mr. Saibou testified on behalf of the respondent. He testified that respondent’s tenancy has not expired. He stated that he entered in a sublease agreement with respondent on August 1, 2017 for a term that expires on July 31, 2020. The new lease was executed by Mr. Saibou and respondent. Mr. Saibou testified that he contacted the owner/landlord, Mr. DeLeonardis about the new sublease and Mr. DeLeonardis approved the sublease without objection. He stated that the owner did not sign the new lease agreement due to the ongoing legal disputes in Supreme Court between Mr. Alidu and Mr. Saibou.1Respondent maintains that the she has occupied and operated her business openly and that the owner had to have known about her occupancy. She argues that Mr. De Leonardis has not advised her that her occupancy under this sublease is illegal nor has he taken action to remove her from the premises. Thus, respondent argues that petitioner has no standing or legal basis to bring this proceeding. Respondent further argues that it has been the custom and practice of the parties that one co-tenant needs to sign a sublease with a sub-tenant. Respondent maintains that Mr. Saibou did not execute the first sublease agreement and that Mr. Alidu should now be prohibited from claiming that both tenants had to consent to and enter into a sublease agreement with respondent.The Court finds that the petitioner has standing to commence this action. As per the master lease agreement, petitioner is one of the two tenants entitled to possess the entire building through 2024. Any sublease agreement executed to grant a subtenant a right to occupy a portion of the premises directly impacts and affects petitioner’s right to occupy the entire building. As such petitioner has standing as a lessee/co-tenant of the premises, entitled to possession (RPAPL §721 (10); see Century Realty v. Grass, 117 Misc 2d 224 (Civ Ct. New York Co. 1982)).Petitioner’s master lease provides no exact procedure for a sublease as it pertains to the approval of the subtenant by both tenants. The lease rider simply provides “Tenant” may sublease subject to the approval by the owner of the premises. In Burack v. I. Burack, Inc., 128 Misc 2d 324 (City Ct. Yonkers 1985), the court held that “[a] cotenant may lease his interest in the premises to a third party(Mott v. Underwood, 148 NY 463. However, a tenant in common cannot enter into a lease that will bind a nonassenting cotenant, and the nonassenting cotenant may share possession of the premises with the lessee” (citing Matter of Panzica v. Cimino, 21 Misc 2d 1076, 1078)).The Court finds that Mr. Saibou credibly testified that he entered into a sublease agreement with respondent with the owner’s verbal permission. The provision does not provide that both tenants must sign the sublease. In fact in the past, only one co-tenant signed the original sublease agreement. The master lease further does not provide that the landlord’s consent must be in writing. Petitioner did not raise any other arguments with respect to respondent’s tenancy and usage of the premises. Accordingly, the Court finds that the petitioner failed to meet his burden in establishing that respondent’s tenancy has expired. Thus it is clear that eviction and removal of the respondent/sub-lessee may not be obtained via this holdover proceeding. Petitioner is entitled to share possession with the sub-lessee and any remedy regarding their joint possession of the commercial premises is beyond the jurisdiction of this court (Id.).The petition is dismissed.This constitutes the Decision and Order of this Court.Dated:October 3, 2018Mount Vernon, New York
