9TH & 10TH ST v. ADOPT-A-BLDG

• Decision Date: 16 March 2001
• Citation: 728 N.Y.S.2d 855,188 Misc.2d 611
• Parties: 9TH AND 10TH STREET, L. L. C., Appellant,<BR>v.<BR>ADOPT-A-BUILDING, INC., et al., Respondents, et al., Respondents.
• Court: New York Supreme Court

188 Misc.2d 611

728 N.Y.S.2d 855

9TH AND 10TH STREET, L. L. C., Appellant,

v.ADOPT-A-BUILDING, INC., et al., Respondents, et al., Respondents.

March 16, 2001.

Delafield, Hope & Linker, New York City (Barbara Simon of counsel), for appellant.

Grad & Weinraub, L. L. P., for respondents.

McCOOE, J. P., DAVIS and SUAREZ, JJ., concur.

OPINION OF THE COURT

Per Curiam.

Order dated March 13, 2000, insofar as appealed from, reversed with $10 costs, petitioner's motion for summary judgment on the holdover petition is granted, and respondents' cross motion for leave to amend their answers is denied.

Appeal from order entered February 9, 2000 dismissed, without costs, as nonappealable. Petitioner is not aggrieved by the order overruling the traverse (CPLR 5511) and its disagreement with certain dicta in the order does not furnish a basis to take an appeal (Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473).

Appeal from order entered February 4, 2000 dismissed, without costs, as nonappealable. No appeal lies from an order denying resettlement of an order or judgment (Murphy v Wack, 186 AD2d 427).

Petitioner seeks possession of the building at 605 East 9th Street, Manhattan, previously the site of a public school, which was leased by the City of New York in 1984 to respondent El Bohio Public Development Corporation (El Bohio) for "non-profit community services involving neighborhood preservation and assistance to local residents." The lease was "short term," and respondent agreed to promptly vacate upon 30 days' written notice. Petitioner, a private landlord, purchased the property at public auction in 1999. The deed provided that use of the property was "restricted and limited to a `community facility use' as such use is defined in the New York City Zoning Resolution," and that the transfer was subject to "the rights, if any, of tenants and persons in possession, if any."

Upon acquiring title, petitioner served a 30-day notice terminating the tenancy of El Bohio and several individual occupants, and commenced eviction proceedings upon a holdover petition alleging that the premises had been rented for "business/commercial purposes" and that respondents were holding over beyond the expiration of the term. In response, El Bohio asserted, inter alia, that petitioner's notice of termination and petition were defective because no reason to terminate its tenancy was set forth. The individual respondents alleged, inter alia, that they were residential occupants entitled to the protections of article 7-C of the Multiple Dwelling Law.

Civil Court denied petitioner's motion for summary judgment, reasoning that the deed restriction as to use of the premises might be "sufficient to cast petitioner into a joint endeavor with municipal government," thereby implicating a due process requirement of good cause for termination of El Bohio's tenancy. The court further found issues of fact with respect to the residential occupancies of the individual respondents. On a subsequent reargument motion, of which we may take judicial notice (see, Marben Realty Co. v Sweeney, 87 AD2d 561, 562), Civil Court modified its original ruling by holding (on constraint) that El Bohio, as a commercial tenant, "had no constitutional rights to good cause for eviction or to advance notice of that cause." However, the court adhered to its decision to deny summary judgment and granted respondents' dismissal motion unless petitioner served an amended petition alleging its continuing compliance with the use restriction (9th & 10th St. v Adopt-A-Building, NYLJ, Nov. 22, 2000, at 31, col 3 [Civ Ct, NY County]).

We reverse and grant summary judgment on the petition as against all respondents. The City is not entwined in this property by virtue of the deed restriction for community facility use. It is not seriously disputed that, whatever its history, the premises does not presently receive government assistance and is not under government supervision. Like any private landlord, petitioner's use of the property is necessarily subject to zoning regulations and other municipal orders. But a generalized "community facility" use, without more, does not connote significant governmental participation of the type requiring a landlord to plead and prove good cause as a precondition to regaining possession at the end of a tenancy. Nor does any limitation upon petitioner's use bestow...