Opinion
570467/09.
Decided August 31, 2010.
Tenant Tin Tian Hu and respondent Mei Song Flower Store appeal from a final judgment of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered May 8, 2009, after a nonjury trial, which awarded possession and a money judgment in the sum of $2,924.72 to landlord in a holdover summary proceeding.
Final judgment (Jose A. Padilla, Jr., J.), entered May 8, 2009, reversed, with $30 costs, and petition dismissed.
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ.
The City of New York leased certain commercial premises to petitioner-landlord. Landlord, in turn, leased a portion of the demised premises to tenant; the written lease agreement between landlord and tenant was "subject to and subordinate to all the terms of [the] lease . . . between the City of New York . . . and [petitioner-landlord]." Therefore, two written lease agreements are relevant to this proceeding — the prime lease between the City and landlord, and the subsequent lease between landlord and tenant. After the expiration of the written lease agreement between landlord and tenant, tenant remained in possession and became a month-to-month tenant.
Landlord ultimately terminated the month-to-month tenancy and commenced this holdover summary proceeding, among other things, to recover the portion of the premises that it leased to tenant. Although the petition alleged that landlord was the "net lessee and landlord" of the premises, it did not allege that the City was the owner of the premises or that tenant's tenancy was subject to the prime lease. Over tenant's objections that landlord failed to allege and prove the existence of the prime lease, the trial court granted the petition and awarded landlord possession and a money judgment.
We agree with tenant that landlord's failure to proffer competent evidence of the terms of the prime lease was fatal to its case. Notably, as mentioned above, the lease between landlord and tenant was "subject to and subordinate to all the terms of [the] lease . . . between the City of New York . . . and [petitioner-landlord]," which may have provided tenant with "certain potential defenses and the Civil Court could not have properly adjudicated this proceeding without that [lease]" ( Matter of Volunteers of Am.-Greater NY, Inc. v Almonte, 65 AD3d 1155, 1157). Landlord's submission at trial of a "memorandum of lease" with the City for "unimproved land" at the address of the demised premises did not cure landlord's failure to prove the terms of the prime lease, since the memorandum did not contain the specifics of the prime lease, preventing the court and tenant from ascertaining whether tenant possessed any potential defenses by virtue of the prime lease.
In light of our disposition of this appeal, we need not and do not reach any other issue.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
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