Judge Anne Katz


Read Full-Text Decision

Landlord sought to terminate the tenancy of the cooperative shareholder, Benmark, in this holdover proceeding. Benmark was served with a notice to cure alleging a subdivision of the premises with a free standing wall constituted an unauthorized alteration violating the lease. Benmark alleged he purchased the premises with the alteration of which landlord was aware as it was performed by prior owners in 1990s. Also, while he offered, the board declined to permit Benmark to legalize the alteration. The court found landlord failed to state a cause of action regarding the subject lease violation, noting testimony revealed that Benmark did not perform the alteration as it was constructed in the 1990s by the Landresses—prior owners. Also, landlord failed to prove authorization was not given the Landresses for the alteration, thus, failed to prove a violation of the lease provision that served as a predicate for the notice to cure and termination notice. Further, the court found the doctrines of laches, and waiver applied as the board and landlord knew, or should have known of the alteration, and failed to show why it failed to take action years ago, noting severe prejudice would enure to Benmark if he was now required to defend this proceeding.Thus, the petition was dismissed.