Rockaway One Co. v. Califf

Decision Date18 July 2002
Citation751 N.Y.S.2d 670,194 Misc.2d 191
PartiesROCKAWAY ONE COMPANY, LLC, Respondent,<BR>v.<BR>LILLIAN CALIFF, Appellant, et al., Respondents.
CourtNew York Supreme Court

Queens Legal Services Corporation, Jamaica (Carl O. Callender and Randolph Petsche of counsel), for appellant.

Michael R. Koenig, New Rochelle (Hal D. Weiner of counsel), for Rockaway One Company, LLC, respondent.

PATTERSON, J.P., GOLIA and RIOS, JJ., concur.

OPINION OF THE COURT
MEMORANDUM

Appeals from orders dated November 5, 1998, May 3, 1999, July 16, 1999, and January 14, 2000 and from decisions dated July 21, 2000 and August 2, 2000 unanimously dismissed.

Final judgment entered August 2, 2000 and order dated October 2, 2000 unanimously affirmed without costs.

The appeals from the intermediate orders and decisions are dismissed because any right of direct appeal from the intermediate orders terminated with the entry of the final judgment (Matter of Aho, 39 NY2d 241, 248) and no appeal lies from the decisions (Gonzalez v Gonzalez, 291 AD2d 373).

The final judgment and the order denying tenant Lillian Califf's motion to set it aside are affirmed. We reject tenant's contention that landlord's commencement of a nonpayment proceeding to recover the rent arrears accruing during the probationary period, in which prosecution of this holdover proceeding was suspended pursuant to a stipulation, "evince[d] an intent to revive" the tenancy and vitiated the notice of termination (McCormack v Geidel, NYLJ, Nov. 22, 1978, at 15, col 1 [App Term, 2d & 11th Jud Dists], reported sub nom. McCoack v Geidel). Unlike McCormack, landlord here did not succeed in obtaining a nonpayment final judgment, and the doctrine of judicial estoppel is thus inapplicable (Jones Lang Wootton v LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168, 176). Moreover, almost contemporaneously with the commencement of the nonpayment proceeding, landlord moved to reinstate the holdover proceeding, and tenant was ably represented by the same counsel in both proceedings, who moved to have the nonpayment proceeding dismissed. Thus, tenant was not misled in any way by the commencement of the nonpayment proceeding. Inasmuch as the creation of a tenancy is ultimately a matter of intent, it cannot be said in the circumstances of this case that landlord's commencement of the nonpayment proceeding evidenced an intent to reinstate the tenancy (cf., Stern v Equitable Trust Co. of N.Y., 238 NY 267, 269 ["(t)he relation of landlord and tenant is always created by contract, express or implied, and will not be implied where the acts and conduct of the parties (negate) its existence"]; 104 Div. Ave. v Lebovits, NYLJ, Apr. 9, 2001, at 31, col 2 [App Term, 2d & 11th Jud Dists] [landlord's acceptance of use and occupancy after expiration of stay did not vitiate the warrant where both parties knew that the payments were being accepted as use and occupancy while efforts to resolve the matter continued]).

Any error by landlord in failing to introduce the lease into evidence was waived by tenant's failure to raise this issue at trial. "[W]here an issue might have been obviated by the submission of documentary evidence, it may not be raised for the first time on appeal" (Ta-Chotani v Doubleclick, Inc., 276 AD2d 313; see, First Intl. Bank of Israel v Blankstein & Son, 59 NY2d 436, 447; Telaro v Telaro, 25 NY2d 433, 438).

We disagree with tenant's...

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  • 1710 Owners Corp. v. Sussman
    • United States
    • New York Civil Court
    • 25 de abril de 2023
    ... ... Courts have held that once a proprietary lease is ... property terminated, in is inconsequential whether the ... conduct has been cured (Rockaway One Co LLC v ... Califf, 194 Misc.2d 191 [AT 2nd Dept 2002]) ... Petitioner argues that the proprietary lease does not require ... a notice to ... ...
  • 1605 Realty Corp. v. Cataquet
    • United States
    • New York Civil Court
    • 8 de março de 2017
    ...for each. Certainly, a landlord may proceed against a tenant on one or both of these grounds. Rockaway One Co v. Califf (194 Misc.2d 191, 751 N.Y.S.2d 670 [App Term 2nd Dep't 2002] ). See also, e.g., Momart Discount Store Ltd v. Rossi (2016 N.Y. Misc. LEXIS 4082, 2016 N.Y. Slip Op 32165[U][......
  • Third Hous. Co. v. Donnelly
    • United States
    • New York Civil Court
    • 28 de dezembro de 2021
    ... ... nuisance. This is permitted by statute and case law. CPLR ... §3014; Rockaway One Co. v. Califf, 194 Misc.2d ... 191 (App Term 2d Dept, 2002). However, while this pleading ... alternative or hypothetical theories is ... ...
  • 145 E. 16th St. LLC v. Spencer
    • United States
    • New York Supreme Court — Appellate Term
    • 13 de março de 2015
    ...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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2 books & journal articles
  • H. Stays, Warrant, Cures Stays, Warrant, Cures
    • United States
    • New York State Bar Association Practical Skills: Residential Landlord-Tenant Law & Procedure (NY) IV Conveying the Tenancy
    • Invalid date
    ...afforded posttrial opportunity to cure where proof established a nuisance that showed no signs of abating); Rockaway One Co. v. Califf, 194 Misc. 2d 191, 194, 751 N.Y.S.2d 670 (App. Term, 2d Dep't 2002); see also Kast Realty, LLC v. Houston, 2003 N.Y. Slip Op. 50892(U), at *3, 2003 WL 21175......
  • B. Holdover Proceedings Holdover Proceedings
    • United States
    • New York State Bar Association Practical Skills: Residential Landlord-Tenant Law & Procedure (NY) IV Conveying the Tenancy
    • Invalid date
    ...residence).[1367] See, e.g., Kern v. Guller, 40 A.D.3d 1231, 1232, 835 N.Y.S.2d 764 (3d Dep't 2007); Rockaway One Co., LLC v. Califf, 194 Misc. 2d 191, 194, 751 N.Y.S.2d 670 (App. Term, 2d Dep't 2002) (allowing alternative pleading in nuisance and breach of a substantial obligation); Shahid......

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