4446-50 Realty Inc. v Rojas

[*1] 4446-50 Realty Inc. v Rojas 2007 NY Slip Op 51307(U) [16 Misc 3d 129(A)] Decided on July 2, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 2, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McCOOE, J.P., SCHOENFELD, HEITLER, JJ
570098/07.

4446-50 Realty Inc., Petitioner-Landlord-Respondent,

against

Rafael Rojas, "Jane" Oryden, d/b/a La Mesquita Restaurant a/k/a El Cactus Restaurant, "John Doe", "Jane Doe" "ABC" Corp., Respondents-Tenants-Appellants.

Tenants appeal from 1) an order of the Civil Court of the City of New York, New York County (Donna G. Recant, J.), dated October 28, 2005, which denied their motion to vacate an order imposing sanctions against tenant's attorney; and 2) an order (same court and Judge), dated December 19, 2005, which, upon remand from this court, adhered to its prior determination awarding possession to landlord in a holdover summary proceeding.

Per Curiam.

Orders (Donna G. Recant, J.), dated October 28, 2005 and December 19, 2005, affirmed, with $10 costs.

Tenants failed to establish that their commercial lease was extended beyond the May 31, 2001 expiration date. Despite being given ample opportunity, tenants did not produce an original of the purported renewal agreement and, in fact, could not lay a proper foundation for the admission of any document since the testimony of tenants' sole witness was stricken due to his failure to submit to cross-examination. In any event, we find no basis to disturb the court's express finding that even if the proffered document were admissible, it was "nothing more than a draft agreement which had never been countersigned."

Although a notice of appeal was filed from the December 13, 2002 order imposing sanctions against tenants' attorney, the appeal was subsequently dismissed for failure to perfect. Since such dismissal is tantamount to an affirmance, issues that could have been raised on the dismissed appeal may not be reviewed on the within appeal (see King v Compass Retail, 226 AD2d 263 [1996]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: July 2, 2007