Arol Development Corp. v. Goodie Brand Packing Corp.

• Decision Date: 16 October 1975
• Citation: 84 Misc.2d 493,378 N.Y.S.2d 231
• Parties: AROL DEVELOPMENT CORP., Petitioner-Landlord-Respondent, v. GOODIE BRAND PACKING CORP., Respondent-Tenant-Appellant.
• Court: New York Supreme Court — Appellate Term

Page 231

378 N.Y.S.2d 231

84 Misc.2d 493

AROL DEVELOPMENT CORP., Petitioner-Landlord-Respondent, v. GOODIE BRAND PACKING CORP., Respondent-Tenant-Appellant.

Supreme Court, Appellate Term, First Department.

Oct. 16, 1975.

Benza & Schwartz, New York City, for appellant.

Martin William Halbfinger and Demov, Morris, Levin & Shein, New York City (Robert D. Levin, New York City, of counsel), for respondent.

Before FRANK, J.P., and HUGHES and FINE, JJ.

PER CURIAM:

During the period of appellant's last occupancy agreement designated Occupancy Permit, with the owner of the Bronx Terminal Market, the City of New York, by which appellant was authorized to occupy and use certain stalls in the market, the City of New York leased the entire Market to the respondent under a long term lease. Appellant's original Occupancy Permit having expired, appellant occupied the stalls in question during the respondent's leasehold without any further agreement therefor.

The trial court correctly determined that the Occupancy Permit was actually a lease (City of New York v. Pennsylvania R.R. Co., 37 N.Y.2d 298, 372 N.Y.S.2d 56, 333 N.E.2d 361; Greenwood Lake & P.J.R.R. Co. v. N.Y. & G.L.R.R. Co., 134 N.Y. 435, 439, 31 N.E. 874; Williams v. Hylan, 223 App.Div. 48, 53, 227 N.Y.S. 392, aff'd 248 N.Y. 616, 162 N.E. 547), and that respondent was a proper party petitioner to bring this summary proceeding against appellant as a month-to-month holdover tenant, upon appellant's attornment to respondent. The provisions of the lease, including the jury waiver, were properly read as continued into the holdover tenancy (Avenue Associates, Inc. v. Buxbaum, 83 Misc.2d 719, 373 N.Y.S.2d 814; Perlow v. Mankato, N.Y.L.J. 9/16/75 AT 2 p. 10, col. 5; Lera Realty Co., Inc. v. Rich, 273 App.Div. 913, 77 N.Y.S.2d 658).

No rights of appellant were affected by the lease between the overlandlord City of New York and respondent; and it was inappropriate for appellant, in its attempt to defeat respondent's proceeding, to collaterally attack the over lease (Tilyou v. Reynolds, 108 N.Y. 558, 15 N.E. 534; People v. Savage, 236 App.Div. 745, 258 N.Y.S. 624; Fergus Motors v. Kramer, Sup., 72 N.Y.S.2d 439, AT 1, n.o.r., aff'd 273 App.Div. 760, 75 N.Y.S.2d 536).

The record shows that the termination of appellant's occupancy agreement was not solely because of appellant's activity in the tenants' association. Hence, assuming, arguendo, that striking tenant's Fourth Affirmative Defense was error (see, Mobil Oil Corp. v. Rubenfeld, 48 A.D.2d 428; Hallahan v. Rogers, AT 1, N.Y.L.J. 10/16/72, p. 2, col. 3; Club Van Cortlandt v. Hosey, N.Y.L.J. 6/11/70, p. 2, col. 2), the error was harmless, since the defense was not made out factually.

In the fact pattern under review, that the first petition was discontinued by respondent because defective did not require that a second notice to quit be served. The first proceeding was attacked by appellant as a nullity; hence it may not now be asserted by appellant to bar the second (Ferrandino v. Cartelli, 12 A.D.2d 604, 208 N.Y.S.2d 750). Moreover the second proceeding was brought promptly and within a...