Marx v. Kinney System, Inc. , 654 N.Y.S.2d 20 ( 1997 )

—Order, Supreme Court, New York County (Walter Schackman, J.), entered on or about October 18, 1995, which, inter alia, granted defendant Kinney System, Inc.’s cross motion for partial summary judgment dismissing the first cause of action to the extent of dismissing the claim for use and occupancy for the period from June 12, 1992 through October 31, 1992, unanimously affirmed, without costs.

Since plaintiffs abandoned any effort in the Civil Court to obtain further use and occupancy from defendant Kinney based on a violation of the latter’s lease covenant to surrender vacant possession, acquiesced in the Civil Court’s determination that the subtenant had become plaintiffs’ tenant at sufferance (see, Matter of Amica Mut. Ins. Co. [Jones], 85 AD2d 727, 729) and proceeded against only the subtenant for use and occupancy in the third holdover proceeding, the instant claim for use and occupancy from Kinney for the period following the latter’s legal surrender of the premises is barred (see, Robbins v Growney, 229 AD2d 356). Moreover, as the motion court pointed out, "in view of the fact that the judgment in [the first holdover proceeding] was ineffective as to the subtenant because of petitioner’s failure to effect service upon [the subtenant], it would be inequitable under the circumstances to make Kinney liable for U & O owed by [the subtenant] for the period after Kinney surrendered legal possession until plaintiff obtained actual possession from the subtenant”. Concur—Milonas, J. P., Ellerin, Nardelli and Tom, JJ.