Sow v. Thanvi

Full title: Samba SOW, Appellant, v. Ashraf THANVI and 786 Ash Wholesale Corp.…

Court: Supreme Court, Appellate Term, Second Dept., 2, 11 & 13 Judicial Dist.

Date published: Jan 8, 2016

2016 N.Y. Slip Op. 50045 (N.Y. App. Term 2016)

31 N.Y.S.3d 924

Opinion

2014-1758 K C

01-08-2016

Samba Sow, Appellant, v. Ashraf Thanvi and 786 ASH WHOLESALE CORP., Respondents.

ALIOTTA, J.P., PESCE and SOLOMON, JJ.

PRESENT: :

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), dated July 22, 2014. The order granted a motion by Ashraf Thanvi and 786 Ash Wholesale Corp. to dismiss the petition in a commercial nonpayment summary proceeding.

ORDERED that the order is affirmed, without costs.

In this commercial nonpayment summary proceeding by an alleged sublessor (the "prime tenant") against his alleged sublessees (the "subtenants"), the prime tenant appeals from an order granting the subtenants' motion to dismiss the petition. We affirm.

In their motion, the subtenants demonstrated, prima facie, that there was no landlord-tenant agreement between the parties for the month for which rent was being sought. In opposition to the motion, the prime tenant conceded that the lease under which he claimed to be a tenant had expired prior to the month for which rent was being sought, and he did not deny that the owner of the property had entered into another prime lease with a different prime tenant prior to that time. Thus, even assuming that the various agreements alleged by the prime tenant were true and valid, any sublease agreement that the prime tenant had with the subtenants had necessarily terminated prior to the month for which rent was sought (see Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 9:55 [4th ed 1998]; 74A NY Jur 2d, Landlord and Tenant § 768 ["a sublease need not be coterminous with the overlease, provided that the sublease term may not extend beyond the end of the overlease"]).

As any agreement between the parties had expired before the relevant time period, this nonpayment proceeding does not lie and the petition was properly dismissed (see RPAPL 711 [2]; Putnam Realty Assoc., LLC v Piggot, 44 Misc 3d 141[A], 2014 NY Slip Op 51306[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; Strand Hill Assoc. v Gassenbauer, 41 Misc 3d 53 [App Term, 2d, 11th & 13th Jud Dists 2013]; 615 Nostrand Ave. Corp. v Roach, 15 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the order is affirmed.

Aliotta, J.P., Pesce and Solomon, JJ., concur.

Decision Date: January 08, 2016