Opinion
January 5, 1999
Litman Jacobs, New York City (Betty Jane Jacobs of counsel), for appellant.
Rose Rose, New York City (Susan C. Warnock and Todd A. Rose of counsel, for La Casa Elegante Corp., respondent.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS HON. LUIS A. GONZALEZ, Justices.
Order dated February 20, 1998 (Shirley Werner Kornreich, J.), insofar as appealed from, reversed with $10 costs, tenant's cross-motion to dismiss the holdover petition is denied, and landlord's motion to strike the first, second and third affirmative defenses is granted.
Tenant is the lessee of two adjoining store spaces under separate leases which expired ten days apart. The later lease authorized tenant to remove the party wall separating the two stores, and it is not seriously disputed on this record that the two premises were used and occupied by tenant: as one integrated unit in furtherance of its commercial enterprise. Under such circumstances, landlord could properly elect to seek possession of the combined space upon a single petition (see 300 West 56th St. Corp. v. Evan, 286 App. Div. 489, affd 1 N.Y.2d 791; Broadway 58th St. Corp. v. Botwinick, 10 Misc.2d 1012). The fact that two notices of termination were served does not dictate a contrary result. Even if two proceedings had been commenced, they would had to have been consolidated or joined for purposes of trial in the interest of judicial uniformity.
We grant landlord's motion to strike the affirmative defenses relating to alleged improper service of the notices of termination and petition. Tenant has failed to factually controvert the affidavits of service (Sando Realty Corp. v. Aris, 209 A.D.2d 682). Nor has tenant identified any infirmity in the notices of termination.