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184 W. 10th Corp. v Westcott
2005 NYSlipOp 51150(U)
Decided on July 21, 2005
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 21, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM P. McCOOE
HON. PHYLLIS GANGEL-JACOB, Justices.


184 West 10th Corp.,NY County Clerk's #570896/03 Petitioner-Landlord-Appellant,

against

Nancy Westcott, a/k/a NANCY WESTCOTT POCOCK, Respondent-Tenant-Respondent, ROGER POCOCK, "JOHN DOE" and/or "JANE DOE", Respondent-Undertenant.


Landlord appeals from an order of the Civil Court, New York County, dated October 10, 2003 (Gerald Lebovits, J.) which granted tenant's pre-answer motion to dismiss the petition in a holdover summary proceeding.


PER CURIAM:

Order dated October 10, 2003 (Gerald Lebovits, J.) affirmed, with $10 costs.

The holdover petition was properly dismissed upon tenant's undisputed showing that landlord accepted and deposited rent checks for at least three months after termination of the tenancy, but prior to the commencement of the instant nonprimary residence holdover proceeding, vitiating the predicate nonrenewal notice (see 205 E. 78th St. Assocs. v Cassidy, 192 [*2]AD2d 479 [1993], revg on dissent of McCooe, J., NYLJ, September 27, 1991, at 21, col 4 [App Term, 1st Dept]; Roxborough Apt. Corp. v Becker, 176 Misc 2d 503, 505 [1998]). Landlord has offered no factual support for its claim that the deposit of rent checks was inadvertent (see International Bus. Machs. Corp. v Stevens & Co., 300 AD2d 222 [2002]) or represented payments of "use and occupancy" under a purported prior agreement between the parties.

This constitutes the decision and order of the court.
Decision Date: July 21, 2005