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Tenant Robson appealed from a Justice Court final judgment awarding landlord possession in a holdover summary proceeding, and denied tenant’s motion to dismiss the petition on the ground landlord accepted rent after termination of the lease and before commencing the proceeding. Landlord commenced this holdover against Robson alleging a breach of the proprietary lease based on conditions in the apartment. The panel noted the Appellate Division, Second Department held that a landlord’s receipt of unsolicited rent after expiration of a rent-stabilized lease, and before commencement of a non-primary residence holdover proceeding, did not amount to a voluntary relinquishment of the right to contest a tenant’s possession. The panel noted it was clear landlord had no intention to waive the termination notice, nor was a month-to-month tenancy created requiring a thirty day notice. Also, landlord’s managing agent’s failure to return the unsolicited rent check, deposited into a bank lock box, could not be deemed to vitiate the notice of termination. Thus, on the court’s own motion, the panel deemed the notice of appeal from a May 5, 2011, decision a premature notice of appeal from the Aug. 4, 2011 final judgment, and affirmed the final judgment.