Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Mot. Seq. 001 Respondent’s Notice of Motion, Affidavit in Support, Memo of Law, Exhibits 1 Petitioner’s Affirmations in Opposition, Exhibits 2 Respondent’s Reply Affirmation 3 Mot. Seq. 002 Petitioner’s Notice of Cross Motion, Affirmations in Support, Exhibits 4 Respondent’s Affirmation in Opposition 5 Petitioner’s Reply Affirmations, Exhibits 6 DECISION/ORDER Petitioner commenced this commercial holdover proceeding pursuant to RPL 231 and RPAPL 711(5), 715(1), seeking to recover possession of the premises located at 852 9th Avenue, north-ground floor and basement below it, New York, NY 10019 (“subject premises”), based on illegal use of the premises for the unlicensed retail sale of cannabis. The holdover petition is dated April 22, 2024. Respondent filed an answer with counterclaims on May 10, 2024. In motion sequence 001, respondent moves for summary judgment and for dismissal of the petition. Petitioner opposes and respondent submits reply. In motion sequence 002, petitioner cross moves for summary judgment and for dismissal of respondent’s affirmative defenses and counterclaims. Respondent opposes and petitioner submits reply. Petitioner’s cross motion for summary judgment is granted to the following extent and respondent’s motion is denied as follows: The movant on a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). CPLR 3212(b) provides that a summary judgment motion must be supported by an affidavit of a person with knowledge of the facts, as well as other admissible evidence (see JMD Holding Corp. v. Congress Fin. Corp., 4 NY3d 373, 384-85 [2005]). Once a movant makes a prima facie showing, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986], citing Zuckerman v. City of New York, 49 NY2d at 562). The court addresses petitioner’s cross motion for summary judgment first as it is dispositive of the matter. Petitioner provides the court with the affidavit of Maxine Danowitz, petitioner’s principal; the subject lease; a copy of the certified deed of the subject premises; information from the New York State Office of Cannabis Management Conditional Adult Use Retail Dispensary Provisional Contact Information; various pictures of the premises and the products sold at the premises; and other various exhibits. With these documents, petitioner makes a prima facie showing of entitlement to summary judgment in this illegal use holdover proceeding (see RPL 231; RPAPL 715[1]; RPAPL 711[5]). Petitioner establishes that it is the owner and landlord of the premises; that the parties are in a landlord-tenant relationship pursuant to a written lease agreement dated November 14, 2023; that respondent is selling cannabis products without a New York State license to do so; that petitioner properly terminated respondent’s lease pursuant to RPL 231 and RPAPL 715(1); and that respondent continues to holdover and occupy the subject premises without petitioner’s permission. The burden shifts to respondent to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial. Respondent fails to meet its burden. In opposition, respondent fails to submit an affidavit of anyone with personal knowledge of the facts rebutting petitioner’s prima facie showing. In support of its own motion for summary judgment, respondent submits the affidavit of its owner, Abrahim Kassim (see NYSCEF Doc. No. 16). In its discretion, the court will consider Mr. Kassim’s affidavit as opposition to petitioner’s motion for summary judgment. Mr. Kassim states he never received a notice of default, notice to cure, or a notice of termination; that he has never been approached by law enforcement or inspectors regarding any products sold at his store; that he never consented to the sale of any illicit substances at the store; and that the subject premises is not and has never been primarily used for the retail sale of unlicensed cannabis (see id.). Addressing respondent’s predicate notice argument, “a termination notice is not generally required to maintain an illegal use proceeding, since such a proceeding is founded upon statutory authority and not the termination of a lease,” unless there exists “a governing regulatory scheme [that] requires preeviction notice” (New York City Hous. Auth. v. Harvell, 189 Misc 2d 295, 296 [App Term, 1st Dept 2001]). Respondent fails to put forth a governing regulatory scheme that requires petitioner to serve a predicate notice prior to commencing this illegal use proceeding. Therefore, respondent’s defective predicate notice argument is without merit. Respondent argues that petitioner failed to properly serve respondent with the notice of petition and petition. Mr. Kassim does not state in his affidavit that petitioner improperly served respondent. Respondent’s argument in its opposition is made upon information and belief by respondent’s counsel. Petitioner filed prima facie proof of proper service upon respondent pursuant to RPAPL 735 (see NYSCEF Doc. No. 9). Respondent fails to provide a “sworn nonconclusory denial of service” that “dispute[s] the veracity or content of the affidavit” (NYCTL 1998-1 Trust & Bank of NY v. Rabinowitz, 7 AD3d 459, 460 [1st Dept 2004]). Consequently, respondent’s defective service argument is also without merit. Respondent further argues that petitioner waived any default in the lease by accepting rent from respondent after the alleged default. However, Mr. Kassim fails to allege in his affidavit that petitioner accepted rent from respondent after the termination of the lease. Furthermore, Ms. Danowitz states that the only rent paid by respondent and accepted by petitioner was for March 2024, the first month due, in the amount of $17,000.00 (see NYSCEF Doc. No. 25, 21). She states that nothing was paid or accepted by petitioner since then (see id.). Even still, as held by the Appellate Term, First Department, a landlord cannot waive the illegal use of the premise by accepting rent (see Murphy v. Relaxation Plus Commodore, Ltd., 83 Misc 2d 838 [App Term, 1st Dept 1975]). Consequently, respondent’s estoppel argument is rejected. Respondent argues that there exist questions of fact regarding whether the product claimed to be cannabis, and bought at respondent’s store is, in fact, cannabis. Respondent also questions whether the alleged cannabis was purchased at respondent’s store. Ms. Danowitz, in her affidavit, states that on or about April 14, 2024, and again on April 16, 2024, she personally entered the subject premises and bought the products depicted in Exhibits A through E attached to the petition (see NYSCEF Doc. No. 25,
12-16; NYSCEF Doc. Nos. 3-7). Exhibit A is a picture of container labeled “cannabis-infused gummies and CBG” with “5 MG THC
