Opinion
570007/03.
Decided October 17, 2003.
Tenant El Gallo Meat Market, Inc. and undertenant Gallo Market, Inc. appeal from an order of the Civil Court, New York County, dated March 5, 2001 (Saralee Evans, J.) denying tenant's motion to dismiss the petition in a summary holdover proceeding and from an order of the same court dated May 18, 2001 (Faviola A. Soto, J.) denying undertenant's motion to dismiss the petition and severing undertenant's counterclaim. Tenant and undertenant also appeal from an order of the same court dated June 5, 2002 (Robert A. Sackett, J.) granting landlord's motion to dismiss tenant's counterclaim, striking tenant's affirmative defenses and for summary judgment on the petition and denying tenant's cross motion to dismiss the petition and for summary judgment. Tenant alone appeals from an order dated August 8, 2001 (Faviola A. Soto, J.) denying undertenant's motion to renew or reargue the May 18, 2001 order dismissing the petition.
Order dated March 5, 2001 (Saralee Evans, J.) reversed, with $10 costs, and tenant's motion to dismiss the petition is granted.
Appeals from orders dated May 18, 2001 (Faviola A. Soto, J.), August 8, 2001 (Faviola A. Soto, J.) and June 5, 2002 (Robert A. Sackett, J.) dismissed, without costs, as academic.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. PHYLLIS GANGEL-JACOB, Justices.
Landlord served a notice to cure dated May 27, 1999 and a notice of cancellation upon tenant terminating the commercial tenancy on June 30, 1999 for certain breaches of the lease. The first holdover proceeding was dismissed on July 27, 2000 on the ground of improper service of the notice of petition and petition. Landlord subsequently commenced the instant holdover proceeding in October 2000, two months after the first holdover proceeding was dismissed and approximately 15 months after the last predicate notice had been served.
Landlord's notice of cancellation is void upon the dismissal of the proceeding brought thereon and a new notice is required to be served before a new proceeding may be commenced (Kaycee W. 113th St. Corp. v. Diakoff, 160 AD2d 573; Mau v. Stapleton, 136 Misc 2d 793; Metropolitan Transp. Auth. v. Bull Bear Brewing Co., NYLJ, October 12, 2000, at 28, col 3 [App Term, 1st Dept]). Since following the dismissal of the previous holdover proceeding, landlord recommenced this holdover proceeding without serving new predicate notices, tenant's motion to dismiss the petition should have been granted.
This constitutes the decision and order of the court.