Park Terrace Gardens, Inc. v Penkovsky

Park Terrace Gardens, Inc. v Penkovsky 2012 NY Slip Op 08238 Decided on November 29, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 29, 2012
Andrias, J.P., Friedman, DeGrasse, Román, Gische, JJ.
8678 121647/02

[*1]Park Terrace Gardens, Inc., Plaintiff-Respondent,

v

Nicholas Penkovsky, et al., Defendants-Appellants, John Doe, et al., Defendants.




Nicholas A. Penkovsky, Riverdale, appellant pro se.
Law Office of Nicholas A. Penkovsky, P.C., Riverdale
(Nicholas A. Penkovsky of counsel), for Robin Schwartz, appellant.
Litwin & Tierman, P.A., New York (Robert D. Tierman of
counsel), for respondents.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered April 9, 2012, which granted plaintiff's cross motion for summary judgment on its cause of action for ejectment and struck defendants-appellants' (defendants) answer and counterclaims, unanimously modified, on the law, to reinstate the answer and counterclaims, and otherwise affirmed, without costs.

Ejectment was properly based on defendants' repeated failures to comply with orders directing payment of use and occupancy, which was a condition of their continued occupancy of their cooperative apartment (see Rose Assoc. v Johnson, 247 AD2d 222 [1st Dept 1998]). However, plaintiff did not move to strike the answer and counterclaims, and there was no authority for doing so.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 29, 2012

CLERK