Recitation, as required, by CPLR §2219(a), of the papers considered in review of Petitioner’s motion to strike undertenant’s demand for jury trial, dismiss undertenant’s defenses and counterclaim, undertenant’s opposition to petitioner’s motion, undertenant’s cross motion seeking dismissal of portions of the petition seeking use and occupancy, and to amend the answer, petitioner’s opposition to the cross motion, petitioner’s reply to undertenant’s opposition, undertenant’s reply to petitioner’s opposition to the cross motion, prime tenant’s motion to dismiss for improper service and petitioner’s opposition to prime tenant’s motion. Papers Numbered Petitioner’s Motion 1 Opposition & Cross Motion 2 Opposition, Reply Affirmations 3, 4, 5 Motion to Dismiss 6 Opposition 7 DECISION/ORDER The underlying proceeding is an unregulated holdover wherein petitioner seeks possession of the subject premises after lease expiration. The prime tenant, Wagner & Kelly, Inc., entered into their final lease with petitioner in April of 2014 which commenced June 1, 2014 and expired May 30, 2017, after several years of possession. The undertenant, Rosa Velez, has been the sublessee of the prime tenant allegedly for over 28 years. The parties seek various relief through the above motions but this court must begin with the most pressing jurisdictional issue, the disposal of which will render the remaining issues moot. Elm Mgmt. Corp. v. Sprung, 33 AD3d 753 (2006). The prime tenant, by counsel, moves pursuant to CPLR §3211(a)(1) and 3211(a)(8), for dismissal of the instant proceeding. Specifically, respondent argues that petitioner failed to serve the Petition and Notice of Petition in the manner proscribed by the terms of the lease. Respondent cites paragraph 3 of the last lease which provides; “Any bill, statement or notice must be in writing and delivered or mailed to the Tenant at the Tenant’s above address….” It is undisputed that the ‘above address’ referenced in the lease is 60-01 Roosevelt Ave. Woodside, NY 11377, which is not the address of the premises. This distinction is relevant given the fact that the prime tenant was subletting the premises for many years to the undertenants with petitioner’s knowledge and not in physical possession of the premises. Respondent concedes that petitioner did properly mail the Notice of Termination to the proper address in accordance with the lease which is supported by the Affidavit of Service. However, respondent asserts petitioner failed to mail the Petition and Notice of Petition to the required address, the failure of which is also reflected in the Affidavits of Service. Petitioner argues that service was made in accordance with the statute and that the additional mailings, as per lease, were not required since the lease expired before the commencement of the action. The court disagrees with petitioner, who neglected to cite any legal authority to support this contention. On the contrary, it has been long held that a holdover tenancy impliedly continues on the same terms and subject to the same covenants as those contained in the original instrument. City of New York v. Penn. R.R. Co., 37 NY2d 298, 372 NYS2d 56 (1975). The lease expired in 2017 and the parties continued their relationship and did not create any new lease or agreement to alter the course of their relationship. Where a tenant holds over without any other or new agreement with his landlord, the law will imply continuance of the tenancy on the same terms contained in the original lease. Baylies v. Ingram, 84 App. Div. 360; Arol Development Corp. v. Goodie Brand Packing Corp., 83 Misc2d 477 (1st Dept. 1975). The logic behind this rule is that since the parties have continued in the relationship of landlord and tenant, it is implied that they intended no change in the conditions of that relationship. Tubbs v. Hendrickson, 88 Misc2d 917 (1976). It is undisputed that rent was paid and accepted after the expiration of the lease, thus tacitly extending the lease on a month to month basis. Petitioner further asserts that the motion should be denied because respondent waived their personal jurisdiction claim by not preserving it on their first appearance or moving to extend the time to answer. In reviewing the file it appears the case was first calendared on July 3, 2019 and was adjourned for respondents to seek legal counsel. An answer for undertenant Velez, which included a personal jurisdiction defense, was filed by the next court date. Subsequent adjournment documents appear to reflect the parties charting the course for the filing of an answer and/or motion practice acknowledging the personal jurisdiction claim. Further, the explicit language of CPLR §3211(e) provides, “an objection based upon a ground specified in paragraph eight or nine of subdivision (a) is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection or if, having made no objection under subdivision (a), he or she does not raise such objection in the responsive pleading.” In the case at bar, respondent has only moved under CPLR §3211(a)(8), which concerns lack of personal jurisdiction, and no answer (from the prime tenant) has been served. It is not necessary for respondent to preserve his personal jurisdiction defense on the first date, particularly when his time to answer was extended by agreement. Iacovangelo v. Shepherd, 5 NY3d 184 (2005); RNDH Realty Corp. v. Rivera, et al, L&T 59527/19, (2nd Dept. 2019). As such, respondent’s motion to dismiss for lack of personal jurisdiction is granted. The remaining issues are denied as moot. The proceeding is dismissed without prejudice. This constitutes the Decision and Order of the court. Date: December 20, 2019
