Opinion
No. 571074/15.
02-22-2016
TENTH STREET HOLDINGS, LLC, Petitioner–Landlord–Respondent, v. James McKOWEN, Respondent–Tenant–Appellant,–and–“John Doe” and “Jane Doe,” Respondents–Undertenants.
Final judgment (Arlene H. Hahn, J.), entered March 27, 2015, affirmed, with $25 costs. Order (Arlene H. Hahn, J.), dated July 23, 2015, insofar as appealable, affirmed, without costs.
Landlord was properly awarded summary judgment in this holdover proceeding based upon chronic rent delinquency. The record conclusively demonstrates that tenant's pattern of rent defaults forced landlord to commence five nonpayment proceedings over a three and one-half year period, which were uniformly resolved in landlord's favor, with no bona fide defenses advanced by tenant (see Definitions Personal Fitness, Inc. v. 133 E. 58th St., LLC., 107 AD3d 617 [2013] ; Adam's Tower Ltd. Partnership v. Richter, 186 Misc.2d 620 [2000] ).
Nor did Civil Court improvidently exercise its discretion in denying renewal, since tenant's newly raised defense of waiver was waived because he failed to raise it as a defense in his answer and in opposition to landlord's motion for summary judgment (see McIntosh v. Niederhoffer, Cross & Zeckhauser, 106 A.D.2d 774, 775 [1984], lv denied 64 N.Y.2d 608 [1985] ; see generally Centaur Props., LLC v. Farahdian, 29 AD3d 468 [2006] ; Hebrew Inst. for Deaf & Exceptional Children v. Board of Educ. of City of NY, 309 A.D.2d 783 [2003] ).
We also find no abuse of discretion in the denial of tenant's motion for a permanent stay of the possessory judgment, inasmuch as he failed to submit an affidavit setting forth factors warranting such relief (see generally 326–330 E. 35th St. Assoc. v. Sofizade, 191 Misc.2d 329 [App Term, 1st Dept 2002] ).
I concur.