Landlord appeals, as limited by its briefs, from that portion of an order of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered June 11, 2009, which, upon reargument, adhered to its prior order granting tenant's motion for summary judgment dismissing the petition and denying landlord's cross motion for summary judgment on the petition and to dismiss tenant's affirmative defenses in a holdover summary proceeding.

Per Curiam.
Order (Julia I. Rodriguez, J.), entered June ll,
2009, insofar as appealed from, reversed, with $10 costs, tenant's motion denied, landlord's cross motion granted, and final judgment directed in landlord's favor against tenant. Issuance of the warrant of eviction shall be stayed for 30 days from the service of a copy of this order with notice of entry.

Landlord made a prima facie showing that it commenced this holdover summary proceeding on November 5, 2008 when it delivered the notice of petition and petition, along with the required fee, to the Civil Court Clerk (see CCA 400; see also RPAPL § 731) and that landlord did not accept tenant's rent for November 2008 until November 12, 2008. In opposition, tenant failed to submit any competent, nonconclusory evidence refuting landlord's showing on either point, and therefore failed to raise a triable issue regarding whether landlord accepted rent from tenant during the "window period," i.e., after the termination of the tenancy but before the commencement of the proceeding. In any event, even assuming in tenant's favor that a triable issue exists as to whether landlord accepted rent during the window period, landlord made a prima facie showing that it did not waive its right to prosecute this proceeding by its inadvertent "acceptance" through a lockbox of a single "rent" payment, a payment expeditiously refunded to tenant (see 83rd St. Assoc. v Gourmet Wine & Spirits,NYLJ, June 7, 1993 at 28, col 5 [App Term, lst Dept]). Thus, in the absence of any showing that tenant has a viable defense to the holdover petition, tenant's motion for summary judgment dismissing the petition should have been denied and landlord's cross motion for summary judgment should have been granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
I concur I concur I concur
Decision Date: June 21, 2010