Omansky v. 160 Chambers St. Owners, Inc.

• Decision Date: 14 November 2017
• Citation: Omansky v. 160 Chambers St. Owners, Inc., 155 A.D.3d 460, 64 N.Y.S.3d 212 (N.Y. App. Div. 2017)
• Parties: Lawrence A. OMANSKY, Plaintiff, v. 160 CHAMBERS STREET OWNERS, INC., Defendant–Respondent, Mary A. Cohen, et al., Defendants, Commerce Court 160 Chambers, Inc., Defendant–Intervenor–Appellant.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 460

64 N.Y.S.3d 212

Lawrence A. OMANSKY, Plaintiff,

v.160 CHAMBERS STREET OWNERS, INC., Defendant–Respondent,Mary A. Cohen, et al., Defendants,Commerce Court 160 Chambers, Inc., Defendant–Intervenor–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Nov. 14, 2017.

Seyfarth Shaw LLP, New York (Jerry A. Montag of counsel), for appellant.

Kucker & Bruh LLP, New York (Nativ Winiarsky of counsel), for respondent.

RICHTER, J.P., MAZZARELLI, KAHN, MOULTON, JJ.

Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered August 1, 2016, which evicted plaintiff from the subject premises and bringing up for review a supplemental order, same court and Justice, entered January 22, 2016, granting the motion of defendant160 Chambers Street Owners, Inc.(the Cooperative) for summary judgment on the holdover petition, evicted plaintiff from the subject premises, unanimously affirmed, without costs.Appeal from the supplemental order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.Order, same court and Justice, entered April 20, 2017, which denied defendant- intervenorCommerce Court 160 Chambers, Inc.'s motion for leave to renew the order granting the Cooperative's motion for summary judgment, unanimously affirmed, without costs.Appeal from the judgment, same court and Justice, entered July 17, 2017, which ordered plaintiff to pay damages to the Cooperative for unpaid rent and attorneys' fees and costs, unanimously dismissed, without costs, as abandoned.

This landlord-tenant dispute concerns the ground floor commercial space in a cooperative building owned by the Cooperative.Plaintiff was the original tenant and defendant-intervenorCommerce Court 160 Chambers, Inc.(Commerce) purports to be his indirect successor-in-interest.

The Cooperative's motion for summary judgment was properly granted as to its holdover petition.

Plaintiff's attempt to renew the lease by letter in December 1992—over 15 years prior to its expiration—failed to comply with the lease's condition that the option to renew be exercised "within (60) days before the end of each twenty-five year term."As such, the renewal was not effective.Even if a Cooperative representative countersigned the renewal letter, that did not waive this condition, as the acknowledgment was expressly limited "to the extent permitted by the applicable lease."

Although the Cooperative failed to comply with its obligation to notify plaintiff of his right to exercise the renewal option within 15 days of expiration of the lease, this failure did not have the effect of automatically renewing the lease.Nor did the Cooperative somehow waive the right to object to the failure to renew by accepting rent checks from Omansky post-termination, as continued acceptance of rent post-lease termination merely creates a month-to-month holdover tenancy ( Real Property Law § 232–c;cf.Jefpaul Garage Corp. v. Presbyt. Hosp. in NY,61 N.Y.2d 442, 448, 474 N.Y.S.2d 458, 462 N.E.2d 1176[1984] ).

Because the lease was never validly renewed, it expired at the end of its initial 25 year term in June 2008.As a result, plaintiff's leasehold interest ceased to exist and could not have been assigned to Commerce over one year later.

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