Opinion
570549/03.
Decided May 12, 2004.
Landlord appeals from an order of the Civil Court, New York County, entered April 2, 2003 (Eileen N. Nadelson, J.) which, inter alia, transferred the holdover summary proceeding to Supreme Court, and from an order of the Civil Court, New York County, entered June 20, 2003 (Eileen N. Nadelson, J.) denying landlord's motion for reargument.
Order entered April 2, 2003 (Eileen N. Nadelson, J.) reversed, with $10 costs, the holdover petition is reinstated, and the matter is restored to the Civil Court calendar.
Appeal from order entered June 20, 2003 (Eileen N. Nadelson, J.) denying reargument dismissed, without costs, as nonappealable (see, Grosso Moving Packing Co., Inc. v. Damens, 233 AD2d 128).
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. PHYLLIS GANGEL-JACOB, Justices.
Invoking paragraph 9 of the parties' commercial lease, landlord elected to terminate the tenancy by written notice within 90 days of a fire that purportedly rendered the demised premises "wholly unusable". The lease provided, inter alia, that ". . . upon the date specified in such [termination] notice the term of this lease shall expire as fully and completely as if such date were the date set forth above for the termination of this lease and Tenant shall forthwith quit, surrender and vacate the premises". . . . In the ensuing holdover proceeding, Civil Court erred in transferring the matter to the Supreme Court and relegating the landlord to an action in ejectment. The lease provision created a conditional limitation since the lease "expire[d] automatically on the happening of a specified contingency, the arrival of the termination date fixed in the notice" (Perrotta v. Western Regional Off-Track Betting Corp., 98 AD2d 1, 5). "It is immaterial whether the event is an objective contingency, or an event set in motion by the landlord, or an event which depends upon the volition of the landlord" (Rasch's Landlord and Tenant, 4th ed., § 23:31, p. 196). Since tenants were holding over after expiration of their term, summary proceedings for eviction were authorized (RPAPL § 711). Indeed, the Civil Court has consistently entertained holdover proceedings premised upon lease expirations pursuant to similar "wholly unusable" clauses (see, Kal Associates v. Ben-Tom Restaurant, Inc., 99 AD2d 1002; Ji-Jae Corp. v. Agyeman-Duah, 189 Misc 2d 595).
Tenants did not appeal from the orders of March 13, 2003 and April 2, 2003, insofar as those orders denied their motion for summary judgment, and this court is without jurisdiction to grant affirmative relief to a nonappealing party (see, Hecht v. City of New York, 60 NY2d 57, 61). Were the issue properly before us, we would agree that landlord's demands for rent, without any tender of payment by tenants, did not constitute a revival of the landlord-tenant relationship or manifest an intention to "relinquish a known right" (see, Sullivan v. Brevard Associates, 66 NY2d 489, 495). Similarly, tenants have not appealed from the order of December 20, 2002 (Debra Rose Samuels, J.) which, on reargument, denied their CPLR 3211(a)(7) motion to dismiss because of landlord's failure to serve a second termination notice following dismissal of the initial holdover proceeding. A respondent may obtain review of certain adverse non-final orders only on an appeal from a final judgment (see, CPLR § 5501[a][1]). The order of April 2, 2003 is not a final order or judgment since it did not dispose of all factual and legal issues raised in the case (see, Hurd v. Lis, 126 AD2d 163, 166), but merely effected a transfer of the proceeding to Supreme Court. Hence, the prior December 20, 2002 order is not reviewable on this appeal.
This constitutes the decision and order of the court.