520 East 86th Street, Inc. v. Leventritt, 127 Misc. 2d 566 (1985)

The rule in the commercial setting appears to be otherwise. In Grand Liberte Coop. v Bilhaud (126 Misc 2d 961 [App Term, 1st Dept]), the lower court’s holding to the effect that a lease provision creating a conditional limitation for the nonpayment of rent was void as against public policy because it vitiated the statutory right to cure a default in a nonpayment proceeding as expressly provided for in RPAPL 751 (1) was reversed by the Appellate Term. That court held that such a clause in the commercial context was enforceable and noted that the tenant was not left without a remedy: he could have obtained a stay in the Supreme Court to toll the running of the cure period and the expiration of the lease under the rule enunciated in First Natl. Stores v Yellowstone Shopping Center (21 NY2d 630 [1968]). The Appellate Term apparently did not give great weight to the argument that by permitting a holdover proceeding rather than a nonpayment proceeding, the tenant lost an important right under RPAPL 751 (1) which permits a tenant in a nonpayment proceeding to cure his rental default by paying or depositing the unpaid rent at any time prior to the issuance of the warrant of eviction. As to this, the Appellate Term stated: “The fact that landlord could, at its option, have brought a nonpayment proceeding (RPAPL 711 [2]), in which event the tenant would have had the right to deposit the amount of the final judgment into court prior to the issuance of a warrant (RPAPL 751 [1]), did not preclude the landlord from terminating the lease in accordance with * * * a holdover proceeding pursuant to RPAPL 711 (1)” (Grand Liberte Coop. v Bilhaud, supra, p 963).