Opinion
No. 570042/23
04-25-2023
401 Broadway Building, LLC, Petitioner-Landlord-Appellant, v. Barra & Associates, PLLC, Respondent-Tenant, and Dong Lu a/k/a David Lu, Respondent-Undertenant-Respondent, and Judy Lu and Bill Wu, Respondents-Undertenants.
Unpublished Opinion
PRESENT: Brigantti, J.P., Tisch, James, JJ.
PER CURIAM.
Landlord, as limited by its brief, appeals from an order of the Civil Court of the City of New York, New York County (Carol R. Feinman, J.), dated October 3, 2022, insofar as it denied its cross motion for summary judgment of possession and a money judgment for use and occupancy against undertenant Dong Lu, and for an inquest against the defaulting tenant in a commercial holdover proceeding.
Order (Carol R. Feinman, J.), dated October 3, 2022, insofar as appealed, modified to the extent of granting landlord's cross motion against the defaulting tenant of record and that portion of landlord's cross motion against respondent-undertenant Dong Lu seeking interim use and occupancy; as modified, order affirmed, without costs, and matter remanded to Civil Court to determine the amount of use and occupancy and to conduct an inquest against the defaulting tenant.
Landlord properly terminated the commercial month to month lease at the end of a term, by serving upon tenant a sixty day notice of termination pursuant to the agreed notice provision in the lease (see generally Lease Fin. Group, LLC v Moore, 42 Misc.3d 135[A], 2014 NY Slip Op 50074[U] [App Term, 1st Dept 2014]; Four Star Holding Co. v Alex Furs, 153 Misc.2d 447 [App Term, 1st Dept 1992]). Inasmuch as tenant did not answer, landlord's motion for an inquest should have been granted.
Landlord was entitled to an award of interim use and occupancy against respondent-undertenant (see Carlyle, LLC v Beekman Garage LLC, 133 A.D.3d 510 [2015]). However, landlord's request for a possessory judgment against said undertenant is premature in the absence of a judgment against the tenant (see 170 W. 85th St. Tenants Assn. v Cruz, 173 A.D.2d 338 [1991]). Landlord may renew its request once it obtains possession from tenant. We note, however, that undertenant's motion to dismiss was properly denied. Undertenant is not a party to the lease with landlord, not entitled to service of a notice of termination, and lacks standing to challenge the notice of termination served upon tenant (see 170 W. 85th St. Tenants Assn. v Cruz, 173 A.D.2d 338; Chelsea 139, LLC v Saunders, 32 Misc.3d 140 [A], 2011 NY Slip Op 51572[U] [App Term, 1st Dept 2011]; West End Assoc. v McGlone, 32 Misc.3d 145 [A], 2011 NY Slip Op 51732[U] [App Term, 1st Dept 2011]). Undertenant's other claims, even assuming he had standing to raise them, formed no defense to the commercial holdover proceeding.