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Sakele Brothers, LLC v. Dey Street Enterprises


(Civ. Ct. NY 9/14/07)

Respondent/Tenant's motion to dismiss denied. Respondent argues that the discontinuance of an earlier proceeding was with prejudice, and that the lease provision that Petitioner invoked to commence this holdover proceeding is ambiguous and provides no clear basis for petitioner to commence the proceeding. Respondent's claim that petitioner's discontinuance of prior non-payment proceeding acts as a discontinuance with prejudice pursuant to CPLR 3217(c) is unavailing. The purpose of CPLR 3217(c) is to restrict the use of the discontinuance device as a means of harassment and a source of repetitive litigation. Where it is clear that a party is not attempting to harass, but has a legitimate purpose for a discontinuance, a prior discontinuance by means of notice does not operate as an adjudication on the merits. Here, the record does not support an argument that Petitioner was attempting to harass respondent, but had a legitimate purpose in its prior discontinuance on notice -- that is, Petitioner's anticipation of being paid without going forward with the nonpayment proceeding. Moreover, Petitioner's assertion correct that lease does indeed contain a conditional limitation. Contrary to Respondent's contention that conditional limitations are not favored by law, when a lease between commercial parties contains a conditional limitation for nonpayment of rent, it shall be enforced in the absence of a showing of fraud, overreaching or other unconscionable conduct by the landlord, which Respondent fails to make.  Link to Full Text of Decision

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