Appeals from orders of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), dated May 25, 2005 and July 29, 2005. The order dated May 25, 2005, inter alia, denied landlords' motion for summary judgment. The order dated July 29, 2005 granted a subsequent motion by landlords for summary judgment. The appeal from the order dated July 29, 2005 is deemed from the final judgment, entered pursuant thereto on August 10, 2005, awarding landlords possession and the sum of $32,597.52 (see CPLR 5501 [c]).

Appeal from order dated May 25, 2005 dismissed.

Final judgment modified by striking the monetary award and remanding the matter for a determination de novo with respect to the amount of rent and/or use and occupancy owed; as so modified, affirmed without costs.

In this holdover proceeding based on the expiration of a commercial lease on December 15, 2004, Adam Dewalt Adams (tenant) claims that landlords are estopped from evicting him because they breached an alleged oral agreement to lease other space to him, which alleged agreement tenant claims to have relied upon to his detriment. Tenant asserts, in particular, that, on December 1, 2004, landlords' representative orally agreed to extend his lease for the subject space, which lease was set to expire on December 15, 2004, until the other space was ready.

In our view, landlords were properly awarded summary judgment with respect to the issue of possession. Whatever the merits of tenant's claims regarding the other space, the instant [*2]proceeding is concerned only with the subject space and with tenant's claim of an oral agreement on December 1, 2004 to modify the existing lease for the subject space by extending it. Tenant's claim fails because the existing lease contained a provision barring oral modifications. Since tenant shows no actions that he took between December 1, 2004 and December 3, 2004, when landlords purportedly reneged on the alleged oral agreement, and no reliance to his detriment on this agreement, the alleged oral extension of the lease cannot be enforced (General Obligations Law § 15-301 [1]; see Rose v Spa Realty Assoc., 42 NY2d 338 [1977]).

Tenant's contention that landlords' motion for summary judgment should have been denied because it was made before issue was joined was waived by his failure to raise the contention in the court below and by his cross application for summary judgment (see e.g. Brookhaven Mem. Hosp. Med. Ctr. v County of Suffolk, 155 AD2d 404 [1989]; Matter of Van Wormer v Leversee, 87 AD2d 942 [1982]). In any event, tenant's contention, premised as it is on his belief that he still had a right to serve an answer, is without merit because tenant's time to answer expired when his earlier motion to dismiss was denied, and the court's order did not extend his time to answer (see CPLR 404 [a]; Matter of Dodge, 25 NY2d 273, 286-287 [1969]), from which order tenant did not appeal. Consequently, the court's determination of landlords' summary judgment motion was proper (see e.g. CPLR 409 [b]; Eklecco Newco LLC v Schlomit, Inc., 13 Misc 3d 133[A], 2006 NY Slip Op 51935[U] [App Term, 9th & 10th Jud Dists]).

Landlords' claim for an award of use and occupancy of $5,500 per month, based on an alleged square footage of 3,300 feet, was raised only in a reply affidavit, to which affidavit tenant had no opportunity to respond. In these circumstances, the proof was not properly before the court and should not have been considered (see e.g. Parkin v Ederer, 27 AD3d 633 [2006]; Osborne v Zornberg, 16 AD3d 643 [2005]). Thus, the monetary award is stricken and the matter remanded for a determination de novo with respect to the issue of the amount of rent and/or use and occupancy owed.

Landlords' appeal from the order dated May 25, 2005 is dismissed because said order was superseded by the order dated July 29, 2005, and because a final judgment was ultimately entered in landlords' favor (see Matter of Aho, 39 NY2d 241 [1976]).

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: December 15, 2006