Baumeister v. Casieri

Since the tenants were in possession under an unexpired lease, the landlords were not entitled to maintain a holdover summary proceeding in the absence of a contractual right to terminate the tenancy before its natural expiration date (Almarine Realty Corp. v. Stern, 203 Misc. 190). The tenants were not represented by counsel at the trial; the failure to assert this defect in the landlords’ case may not, in the circumstances, be regarded as a waiver or as an omission which, *655if timely asserted, might have been cured (see Varela v. Miller, 204 Misc. 88). It was, therefore error to grant a final order against the tenants who were without counsel.

The final order should be reversed, with $30 costs and petition dismissed, with costs, without prejudice to a new proceeding.

Concur — Hofstadtbb, J. P., Aurelio and Tilzer, JJ.

Final order reversed, etc.