145 E. 16th St. LLC v. Spencer

Decision Date13 March 2015
Docket NumberNo. 570121/12.,570121/12.
Citation13 N.Y.S.3d 851 (Table)
Parties145 EAST 16TH STREET LLC, Petitioner–Landlord Respondent, v. Lynore SPENCER a/k/a Lenore Spencer, Respondent–Tenant–Appellant, and Dana Spencer, David Gerstenhaber, “John Doe,” and “Jane Doe,” Respondents–Undertenants Appellants.
CourtNew York Supreme Court — Appellate Term
Opinion

PER CURIAM.

Order (Sheldon J. Halprin, J.), dated April 12, 2013, insofar as appealed from, affirmed, with $10 costs.

We sustain the denial of tenant's dismissal motion. Landlord's commencement and short-lived prosecution of separate, but identical nonpayment proceedings did not ify the previously served termination notice underlying this 2010 nonprimary residence holdover proceeding (see 1251 Ams. Assoc. II, L.P. v. Rock 49th Rest. Corp., 13 Misc.3d 142[A], 2006 N.Y. Slip Op 52282[U] [App Term, 1st Dept 2006] ). It need be emphasized that the nonpayment proceedings were commenced after this holdover proceeding was dismissed on tenant's motion, but prior to this Court's reversal of the dismissal order and reinstatement of the holdover petition (see 145 E. 16th St., LLC v. Spencer, 36 Misc.3d 128[A], 2012 N.Y. Slip Op 51199[U] [App Term, 1st Term 2012] ); and the nonpayment proceedings were either discontinued by landlord or dismissed without prejudice by the court (see Bridge Hardware Co. v. Disosway & Fisher, 199 Misc. 259 [1950], affd 278 App.Div. 812 [1951] ). Given landlord's continued prosecution of its (ultimately successful) appeal from the dismissal order, it cannot reasonably be said that landlord intended to, or did, reinstate the tenancy. The creation of a landlord-tenant relationship “only arises from a legitimate manifestation of intent on the part of the parties to create such a relationship” (Coleman v. Dabrowski, 163 Misc.2d 763, 765 [1994] ), and “should not be reduced to a matter of gamesmanship, seduction and artifice” (id. ), or be made to hinge on “gotcha” litigation tactics (see FS 41–45 Tiemann Place LLC v. Estrella, 38 Misc.3d 29, 30 [2012] ).

Nor in the particular circumstances of this case, and the parties' extensive and combative litigation history, has tenant shown that she was misled in any way by the commencement of the nonpayment proceedings (see Rockaway One Co. v. Califf, 194 Misc.2d 191, 193 [2002] ).

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