Baiocco v. Charles H. Greenthal Management

—Order, Supreme Court, New York County (Lorraine Miller, J.), entered December 29, 1994, which denied plaintiff tenant’s motion for summary judgment dismissing defendant landlords’ counterclaim for use and occupancy, and, upon a search of the record, granted defendants summary judgment on that counterclaim in the amount of $4,122.27, unanimously affirmed, without costs. There is no merit to plaintiff’s contention that defendants’ failure to initiate holdover proceedings or demand rent during plaintiff’s holdover period should estop them from seeking payment for use and occupancy (see, 1400 Broadway Assocs. v Lee & Co., 161 Misc 2d 497, 500). Plaintiff’s remaining contentions are also without merit or improperly raised for the first time on appeal (Aguirre v City of New York, 214 AD2d 692, 694). 323 Concur—Rosenberger, J. P., Rubin, Ross, Nardelli and Mazzarelli, JJ.