Opinion
570074/23
09-26-2023
Joel LEVIN AS Successor TRUSTEE FOR Arnold GOLDSTEIN as Trustee of Trust f/b/o Shari Lynn Goldstein and Samson Management LLC, as Agent, Petitioner-Landlord-Respondent, v. Marilyn BRUST, Respondent-Tenant-Appellant.
Jordan M. Hyman, Rockville Centre, for respondent. Charles Small, New York City, for appellant.
Jordan M. Hyman, Rockville Centre, for respondent.
Charles Small, New York City, for appellant.
PRESENT: Hagler, P.J., Brigantti, James, JJ.
Per Curiam. Order (Karen May Bacdayan, J.), dated January 25, 2023, insofar as appealed from, reversed, with $10 costs, tenant's cross motion granted and the petition dismissed. Appeal from order (Karen May Bacdayan, J.), dated October 6, 2022, dismissed as academic.
Civil Court should not have treated tenant's cross motion for summary judgment as a motion for leave to reargue a prior order denying tenant's preanswer motion to dismiss pursuant to CPLR 3211(a). "[T]here is nothing which prevents a motion for summary judgment from being made on the same ground which had earlier been advanced in a motion to dismiss" ( Tapps of Nassau Supermarkets, Inc. v. Linden Blvd. , 269 A.D.2d 306, 307, 704 N.Y.S.2d 27 [2000] ; see Ancrum v. St. Barnabas Hosp. , 301 A.D.2d 474, 475, 755 N.Y.S.2d 28 [2003] ).
On the merits, tenant's cross motion for summary judgment dismissing the nonprimary residence holdover petition should have been granted. Landlord's offer to renew the rent-stabilized lease on December 16, 2019, timely accepted by tenant, created an enforceable lease agreement, notwithstanding landlord's service of a notice of nonrenewal on December 26, 2019 (see Isaly-Liceaga v. Pickarski, 63 Misc.3d 154[A], 2019 N.Y. Slip Op. 50802[U], 2019 WL 2256324 [App. Term, 1st Dept. 2019] ; 123 W. 15, LLC v. Compton , 4 Misc.3d 138[A], 2004 N.Y. Slip Op. 50938[U], 2004 WL 1924042 [App. Term, 1st Dept. 2004] ; Hakim v. Muller , 2002 N.Y. Slip Op. 50339[U], 2002 WL 2018708 [App. Term, 1st Dept. 2002] ; Herman v. Meryn (NYLJ, July 29, 1994, at 21, col 1 [App Term, 1st Dept 1994]). "The fact that the landlord may not have intended the proposed lease ... to constitute a binding offer is immaterial because the statute requires that the offer be binding" ( Matter of East 56th Plaza, Inc. v. New York City Conciliation & Appeals Bd. , 56 N.Y.2d 544, 546, 449 N.Y.S.2d 959, 434 N.E.2d 1337 [1982] ; see Jacreg Realty Corp. v. Barnes , 284 A.D.2d 280, 280-281, 727 N.Y.S.2d 103 [2001] ).
We reject landlord's contention that the subject renewal lease is unenforceable because it lists an allegedly non-existent entity, i.e., "16 Park Ave" as "Owner." Landlord identified itself in the renewal lease it admittedly tendered as "16 Park Ave," the same entity identified as owner in the prior (2018) renewal lease signed by the parties, and landlord's correspondence instructed tenant to make all rent checks payable to the "building entit[y]," one "16 Park Avenue LLC." In the circumstances, landlord cannot escape liability by now disavowing 16 Park Ave (see Gotthelf v. Shapiro , 136 App. Div. 1, 3, 120 N.Y.S. 210 [1909] ; see also David v. Williamsburgh City Fire Ins. Co. , 83 N.Y. 265, 268-269 [1880] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
All concur.