Opinion
May 28, 1974
In a summary holdover proceeding to recover possession of real property, petitioner appeals (by permission) from an order of the Appellate Term of the Supreme Court, Second and Eleventh Judicial Districts, entered April 11, 1973, which modified and, as modified, affirmed a judgment of the Civil Court of the City of New York, Queens County, entered May 8, 1972, after a nonjury trial. The judgment of the trial court awarded possession of the premises to petitioner, together with a monetary amount, but stayed issuance of a warrant for five days. The Appellate Term modification granted the tenant a conditional further stay "until further order of the court below". Order reversed, on the law, without costs, and judgment of the Civil Court reinstated. The tenant had reasonable notice that he was in violation of his commercial lease by storing large accumulations of clothing and shoes (for his business) in the basement portion of the leased premises. Violations were placed against the premises, and the tenant even admitted that one building inspector had informed him that it was illegal to store his merchandise in the basement. According to the lease, the tenant was obligated "to comply with all orders and requirements of governmental authority applicable to said building or to any occupation thereof". Under these circumstances, and the landlord having properly terminated the lease, the Appellate Term was not empowered to revive it by granting the tenant an additional 10 days to cure his default ( First Nat. Stores v. Yellowstone Shopping Center, 21 N.Y.2d 630). Gulotta, P.J., Hopkins, Latham and Brennan, JJ., concur.