200 Eleventh Assoc. v Lamontagne

[*1] 200 Eleventh Assoc. v Lamontagne 2007 NY Slip Op 50323(U) [14 Misc 3d 139(A)] Decided on March 1, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 1, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, SCHOENFELD, JJ
570527/06.

200 Eleventh Associates, Plaintiff-Appellant,

against

Susan Lamontagne, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered April 11, 2005, which granted defendant's motion for summary judgment dismissing the action.

PER CURIAM:

Order (Raul Cruz, J.), entered April 11, 2005, affirmed, with $10 costs.

Summary judgment dismissal of the complaint was properly awarded to defendant-tenant. Plaintiff-landlord's allegation that defendant held over without permission during December 2002 is negated by plaintiff's prior commencement of a nonpayment proceeding seeking December 2002 rent (see Ansonia Associates v Pearlstein, 122 Misc 2d 566 [1984]). Moreover, it is undisputed that defendant vacated by December 31, 2002 and that plaintiff exercised its right to apply the security deposit to the December rent. Plaintiff failed to submit evidentiary proof in admissible form establishing that it incurred any other damages or out-of-pocket expenses.

This constitutes the decision and order of the Court.
Decision Date: March 1, 2007