Respondent MTP 59 ST LLC appeals from an order of the Civil Court, New York County, entered June 26, 2003 (Geoffrey D. Wright, J.) which denied respondent's pre-answer motion to dismiss the petition and from an order of the same court entered August 5, 2003 (Cynthia Kern, J.) which denied respondent's motion for summary judgment dismissing the petition and granted petitioners' cross motion to dismiss the affirmative defenses and awarded

petitioners use and occupancy pendente lite in a holdover summary proceeding. Respondent also appeals from an order of the same court entered October 22, 2003 (Cynthia Kern, J.) which denied its motion to reargue the August 5, 2003 order, granted petitioners' cross motion for summary judgment for possession and directed a hearing on the amount of use and occupancy due petitioners. Respondent additionally appeals from a final judgment of the same court entered October 22, 2003 (Cynthia Kern, J.)which awarded possession to petitioners. Petitioners cross-appeal from an order of the same court entered November 17, 2003 after a hearing (Eileen A. Rakower, J.) on the grounds that the award of use and occupancy at the monthly rate of $38,500 was inadequate and was limited to the period commencing July 2003, rather than from December [*2]2002, and denied petitioners' motion to direct respondent to file an undertaking pursuant to CPLR 5519(a)(6) pending the appeal.
PER CURIAM:

Final judgment entered October 22, 2003 (Cynthia Kern, J.) affirmed, with $25 costs.

Order entered November 17, 2003 (Eileen A. Rakower, J.) modified by awarding use and occupancy to petitioners
for period commencing June 2003 at the rate of $38,500 per month set below; as modified, order affirmed, without costs.

Appeals from the orders entered June 26, 2003 (Geoffrey D. Wright, J.), August 5, 2003 (Cynthia Kern, J.) and October 22, 2003 (Cynthia Kern, J.) dismissed, without costs, as subsumed in the appeal from the final judgment entered October 22, 2003.

We reject, as did Civil Court, the technical arguments raised by respondent-undertenant, a parking garage operator, in defending this holdover proceeding commenced by petitioners-landlords. The court properly determined that petitioners' January 30, 2003 notice of termination was sufficient to serve as a predicate for the eviction proceeding commenced in May 2003, where the prior holdover proceeding had not been terminated at the time of commencement of this proceeding and where tenant was caused no discernible prejudice (see Arol Dev. Corp. v Goodie Brand Packing Corp., 83 Misc 2d 477 [1975], affd 84 Misc 2d 493 [1975], affd 52 AD2d 538 [1976], appeal dismissed 39 NY2d 1057 [1976]). Also proper was the court's determination
that since the two adjoining parking garages were used by undertenant as one integrated unit in furtherance of its commercial enterprise, petitioners could properly elect to seek possession of the combined space upon a single petition (CPLR 1002[a]; NRP LLC II v La Casa Elegante Corp., 180 Misc 2d 300 [1999]). The petition itself stated petitioners' respective interests in the premises and accurately described the premises sought to be recovered in compliance with the pleading requirements of RPAPL 741.

We have considered respondent's remaining contentions and find them to be without merit. Inasmuch as respondent has presented no cognizable substantive defense, a possessory judgment was properly awarded to petitioners on the holdover petition.

Turning to petitioners' cross appeal, we find no basis to increase the amount of use and occupancy. The trial court's finding of fair rental value of $38,500 per month, the rent reserved in respondent-undertenant's sublease with the departed tenant, was amply supported by the hearing record. We modify only to the extent of granting petitioners' motion for use and occupancy for the holdover period commencing June 2003 (see RPAPL 749[3]).

This constitutes the decision and order of the court.
Decision Date: August 02, 2005