Opinion
2016–1761 K C
04-06-2018
JCF ASSOCIATES, LLC, Appellant, v. SIGN UP USA, INC., Respondent, et al., Undertenant.
Stuart M. Cohen, Esq., for appellant. Law Office of Peter J. Pruzan (Peter J. Pruzan of counsel), for respondent.
Stuart M. Cohen, Esq., for appellant.
Law Office of Peter J. Pruzan (Peter J. Pruzan of counsel), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
ORDERED that the final judgment is affirmed, without costs.
In this commercial holdover proceeding (see RPAPL 711 [1 ] ), it was established that the parties' agreement provided Sign Up USA, Inc. with access to an advertising billboard located on a "lot" at 120 Hamilton Avenue owned by petitioner, for a monthly fee (see Sign Up USA, Inc. v. JCF Assoc., LLC , 33 AD3d 905, 906 [2006] ). Although the agreement identified the parties as "lessor" and "lessee," and the fee as "rent," an examination of the contract's terms reveals that the parties' "manifest intention" ( American Jewish Theatre v. Roundabout Theatre Co. , 203 AD2d 155, 156 [1994] ; see also Bridge Hardware Co. v. Disosway & Fisher , Inc., 199 Misc 259, 261 [Sup Ct, NY County 1950], affd 278 App Div 812 [1951] ) was not "the transfer of absolute control and possession of property at an agreed rental" ( Feder v. Caliguira , 8 NY2d 400, 404 [1960] ), but the grant of "a revocable privilege given to one, without interest in the lands of another, to do one or more acts of a temporary nature upon such lands" ( Union Sq. Park Community Coalition, Inc. v. New York City Dept. of Parks & Recreation , 22 NY3d 648, 656 [2014] [internal quotation marks and citations omitted]; see also East Ramapo Cent. Sch. Dist. v. Mosdos Chofetz Chaim, Inc. , 52 Misc 3d 49, 50 [App Term, 2d Dept, 9th & 10th Jud Dists 2016] ), that is, a licensing agreement (see e.g. Roth v. Ducks Hockey Club , 52 Misc 2d 533, 534 [Suffolk County Dist Ct 1966] ["a contract granting the privilege of maintaining a sign without any exclusive right of possession, does not create a landlord-tenant relationship"]; Bridge Hardware Co. v. Disosway & Fisher, Inc. , 199 Misc at 261 [same] ).
As "proof of the existence of a landlord-tenant relationship is an element of a landlord's prima facie case in a holdover proceeding (see RPAPL 711 [1 ] )" ( 5670 58 St. Holding Corp. v. ASAP Towing Servs., Inc. , 57 Misc 3d 137[A], 2017 NY Slip Op. 51302[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ), the failure of such proof required the dismissal of the holdover petition.
Even were we to construe the agreement as creating a form of landlord-tenant relationship amenable to a holdover summary proceeding, the trial court properly dismissed the petition because the lease had not terminated. "A holdover proceeding based upon a landlord's termination of a lease may only be maintained where there is a conditional limitation in the lease providing for its early termination" ( Fourth Hous. Co., Inc. v. Bowers , 53 Misc 3d 43, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see also TSS–Seedman's, Inc. v. Elota Realty Co. , 72 NY2d 1024, 1026–1027 [1988] ; Perrotta v. Western Regional Off–Track Betting Corp. , 98 AD2d 1, 5 [1983] ; 1900 Albemarle, LLC v. Solon , 57 Misc 3d 158[A], 2017 NY Slip Op. 51665[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ). The parties' agreement contained no provision for its termination upon the failure to cure a violation, and while the breach of a lease term may subject a tenant to an ejectment action (see 2 Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings §§ 23:12 at 165, 23:25 at 173 [5th ed 2017] ), a holdover summary proceeding does not lie.
Petitioner's argument, raised for the first time on appeal, that the Civil Court should have deemed the proceeding to have been brought pursuant to RPAPL 711 (5), is not properly before this court (see Robles v. Brooklyn Queens Nursing Home, Inc. , 131 AD3d 1032 [2015] ). In any event, the contention is unavailing. The proceeding was brought pursuant to RPAPL 711 (1), and no motion to amend the pleadings was made. Moreover, the proof would not have supported the granting of such a motion, as the "illegality" alleged—that appropriate permits for the sign had not been obtained—did not constitute the use of the premises for an "illegal business" within the meaning of RPAPL 711 (5) (see Spira v. Spiratone, Inc. , 148 Misc 2d 787 [Civ Ct, NY County 1990] ).
Accordingly, the final judgment is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.