American Savings & Loan Ass'n v. Twin Eagles Bruce, Inc.

Oct 20, 1994
Versions:208 A.D.2d 446
617 N.Y.S.2d 717
1994 N.Y. App. Div. LEXIS 9774

Order, Supreme Court, *447New York County (Alfred Toker, J.) entered December 22, 1993, which granted plaintiff an order of ejectment, incident to a judgment of foreclosure, unanimously affirmed, with costs.

The IAS Court properly rejected, without a hearing, defendant’s contention that he was not served with notice to vacate. His conclusory denial was not accompanied by "further probative facts” that would require a traverse hearing (Public Adm’r of County of N. Y v Markowitz, 163 AD2d 100, 101; cf., Matter of St. Christopher-Ottilie [Devon M.], 169 AD2d 690). The defendant’s tender of rent checks, which plaintiff lender’s counsel retained for some time without negotiating them does not create a tenancy absent indicia that equitable estoppel is justified (see, Doubledown Realty Corp. v Gibbs, 122 Misc 2d 32, 34-35, affd sub nom. Doubledown Realty Corp. v Harris, 128 Misc 2d 403). The fact that defendant asserts his status as a tenant while being, at the same time, a principal of the landlord and a guarantor of the mortgage, clearly militates against the intervention of equity here. We have considered the defendant’s remaining arguments and find them to be without merit. Concur—Carro, J. P., Wallach, Kupferman, Ross and Williams, JJ.