| Frey v Rose |
| 2008 NY Slip Op 04647 [51 AD3d 859] |
| May 20, 2008 |
| Appellate Division, Second Department |
| Robert Frey, Appellant, v Allan V. Rose, Doing Businessas AVR Realty Co., et al., Respondents. |
—[*1] Jaspan Schlesinger Hoffman, LLP, Garden City, N.Y. (Steven R. Schlesinger and Marci S.Zinn of counsel), for respondents.
In an action, inter alia, for specific performance of an option to renew a commercial lease,the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court,Suffolk County (Pines, J.), dated April 30, 2007, as denied his motion for a preliminaryinjunction and granted those branches of the defendants' cross motion which were pursuant toCPLR 3211 to dismiss the first and third causes of action, and (2) from an order of the samecourt dated May 30, 2007. The appeal from the order dated April 30, 2007 brings up for reviewan order of the same court dated June 1, 2007, which denied the plaintiff's motion for leave torenew his motion for a preliminary injunction and his opposition to those branches of thedefendants' cross motion which were pursuant to CPLR 3211 to dismiss the first and third causesof action (see CPLR 5517 [b]).
Motion by the respondents to dismiss the appeals from the orders dated April 30, 2007 andMay 30, 2007 on the ground that they have been rendered academic. By decision and order onmotion of this Court dated October 15, 2007 (2007 NY Slip Op 80633[U]), the motion was heldin abeyance and referred to the Justices hearing the appeals for determination upon the argumentor submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the argument of the appeals, it is,[*2]
Ordered that the branch of the motion which is to dismissthe appeal from the order dated April 30, 2007 is granted, and the motion is otherwise denied asacademic in light of our determination herein; and it is further,
Ordered that the appeal from the order dated April 30, 2007 is dismissed, without costs ordisbursements; and it is further,
Ordered that the appeal from the order dated May 30, 2007 is dismissed as abandoned,without costs or disbursements; and it is further,
Ordered that the appeal from the order dated June 1, 2007 is dismissed on the ground thatreview pursuant to CPLR 5517 (b) has been rendered academic, without costs or disbursements.
The plaintiff was assigned a commercial lease, which contained a clause providing, inrelevant part, that "Tenant may extend the Original Term of this Lease . . . bywritten notice to Landlord on or before six (6) months prior to the then scheduled expirationdate." After the landlord, the defendant Allan V. Rose, doing business as AVR Realty Co.(hereinafter AVR), refused to renew the lease, the plaintiff, claiming that he orally exercised theoption to renew the lease seven months prior to its expiration, commenced this action againstAVR and its principal, seeking, inter alia, specific performance of the lease renewal provisionand a permanent injunction enjoining the defendants from evicting him or interfering with histenancy.
The plaintiff moved for a preliminary injunction enjoining the defendants from evicting himor interfering with his tenancy, and the defendants cross-moved to dismiss the complaint,contending that the plaintiff had failed to timely and properly exercise the option to renew thelease. In an order dated April 30, 2007 the Supreme Court denied the plaintiff's motion andgranted the defendants' cross motion. Thereafter, the plaintiff moved for leave to renew hismotion and his opposition to the defendants' cross motion. In an order dated June 1, 2007 theSupreme Court denied the plaintiff's motion for renewal.
AVR subsequently commenced a summary eviction proceeding against the plaintiff in theDistrict Court, Suffolk County. The parties entered into a stipulation of settlement, in which theplaintiff "consent[ed] to . . . a judgment of possession and the issuance of a warrantof eviction," and the parties agreed that the plaintiff "shall vacate [and] surrender possession onor before [August 1, 2007]." A warrant of eviction dated August 3, 2007 directed the removal ofthe plaintiff from the subject premises, and the plaintiff has since vacated the subject premises.
Under these circumstances, it is no longer possible to prevent the defendants from evictingthe plaintiff or interfering with his tenancy, as requested in the plaintiff's third cause of action andin his motion for a preliminary injunction. Thus, the appeals from so much of the order datedApril 30, 2007 as denied the plaintiff's motion for a preliminary injunction and granted thatbranch of the defendants' cross motion which was to dismiss the third cause of action, and fromso much of the order dated June 1, 2007 as denied the plaintiff's motion for renewal with respectto such relief, have been rendered academic.
Furthermore, "[t]he issuance of the warrant of eviction terminated any existing tenancy andannulled the landlord-tenant relationship by operation of law" (Rocar Realty Northeast, Inc. v JeffersonVal. Mall Ltd. Partnership, 38 AD3d 744, 747 [2007]; see Galapo v Feinberg,266 AD2d 150, [*3]151 [1999]). Therefore, the remedysought in the first cause of action, i.e., specific performance of a duty arising under the lease, isno longer available (see Miles v Gladstein, 214 AD2d 706 [1995]). Thus, the appealsfrom so much of the order dated April 30, 2007 as granted that branch of the defendants' crossmotion which was to dismiss the first cause of action, and from so much of the order dated June1, 2007 as denied the plaintiff's motion for leave to renew his opposition to that branch of thedefendants' cross motion, have also been rendered academic. Prudenti, P.J., Miller, Dillon andMcCarthy, JJ., concur. [See 2007 NY Slip Op 31057(U).]