Opinion
2006-992 K C.
Decided December 13, 2007.
Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered November 25, 2005. The order denied landlord's motion for summary judgment and granted tenant's cross motion for summary judgment dismissing the petition in a commercial holdover proceeding.
Order reversed without costs, landlord's motion for summary judgment granted to the extent of directing that a holdover final judgment be entered awarding possession to landlord, tenant's cross motion for summary judgment dismissing the petition denied, and matter remanded for further proceedings in accordance with the following memorandum.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
In an out-of-court "stipulation" executed on April 10, 2002, it was agreed that landlord 555 Prospect Associates, LLC would purchase the subject property from tenant, Interfaith Medical Center, Inc., which then owned the property and used it as a hospital; that landlord would thereafter commence a holdover proceeding and be awarded a final judgment, with execution of the warrant stayed until April 10, 2005; and that, if tenant failed to vacate by that date, landlord would be entitled to $2,000 per day in use and occupancy. By agreement dated May 17, 2004, the stipulation of April 10, 2002 was modified to change tenant's date to vacate the premises to the later of April 10, 2005 or 30 days after the "commencement date" of a lease between 1545 Atlantic Development LLC, an entity controlled by landlord's principal, and tenant, for the hospital that was being constructed at 1545 Atlantic Avenue, Brooklyn. The "commencement date" of the lease for the 1545 Atlantic Avenue property is defined in that lease as the earlier of the following: 30 days after landlord gives tenant written notice certifying that the initial construction work has been substantially completed, that a temporary or permanent certificate of occupancy has been issued, and that possession is available for delivery to tenant; or "the date upon which Tenant first opens all or substantially all of the Building for business to the public." Landlord instituted this holdover proceeding in May 2005, alleging that, pursuant to the stipulation, the term of the tenancy expired on April 10, 2005.
Since, under the terms of the April 10, 2002 agreement, landlord was entitled to entry of a holdover final judgment, it was error for the court below to deny landlord's motion for summary judgment and to grant tenant's cross motion for summary judgment dismissing the petition. Accordingly, the Civil Court's order is reversed, tenant's cross motion for summary judgment denied and landlord's motion for summary judgment granted to the extent of awarding landlord a holdover final judgment of possession.
We agree, however, with the Civil Court that, at the time its order was made, landlord was not entitled to execute the warrant. It was undisputed that, at the time the motion was decided, the date to vacate the premises set in the May 17, 2004 modification agreement had not yet arrived, because the "commencement date" of the lease for the hospital being constructed at 1545 Atlantic Avenue, as said date is defined in the lease for that property, had not yet arrived. Landlord's claim that tenant should be estopped from relying on the modification agreement was properly rejected by the Civil Court for the reasons stated in its opinion. Since the record is silent as to whether the date set for tenant to vacate the premises has now arrived, the matter is remanded for further proceedings to determine if the warrant may now be executed, as well as
what, if any, use and occupancy payments may be due under the stipulation as modified.
Pesce, P.J., and Rios, J., concur.
Golia, J., taking no part.