Opinion
2006-1281 K C.
Decided on February 6, 2008.
Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Oymin Chin, J.), entered December 20, 2005. The final judgment, after a nonjury trial, dismissed the petition in a holdover summary proceeding.
Final judgment affirmed without costs.
PRESENT: WESTON PATTERSON, J.P. and RIOS, J.
Subsequent to the entry of the final judgment dismissing the instant holdover proceeding, landlords, in 2006, successfully prosecuted to judgment a nonpayment proceeding against tenant. Since a nonpayment proceeding must be predicated on an existing unexpired agreement to pay rent (RPAPL 711; see e.g. United Sec. Corp. v Suchman, 307 NY 48; 200 Eleventh Assoc. v Lamontagne, 14 Misc 3d 139 [A], 2007 NY Slip Op 50323[U] [App Term, 1st Dept]; Frost Equities Co. v New York Brasserie Ltd., 5 Misc 3d 1004 [A], 2004 NY Slip Op 51196[U] [Civ Ct, NY County], and cases cited therein), the final judgment entered in the nonpayment proceeding conclusively established that the tenancy continued to exist or was reinstated after the service of the March 10, 2005 notice of termination upon which the instant holdover proceeding was based, and vitiated said notice ( see McCormack [reported as McCoack] v Geidel, NYLJ, Nov. 22, 1978 [App Term, 2d 11th Jud Dists]; Harris v Timecraft Indus., 132 Misc 2d 386; see generally Rockaway One Co. v Califf, 194 Misc 2d 191 [App Term, 2d 11th Jud Dists 2002]). Accordingly, the instant holdover petition must be dismissed. We reach no other issue.
Weston Patterson, J.P. and Rios, J., concur.