Lyndon Props. LLC v Russomanno

[*1] Lyndon Props. LLC v Russomanno 2009 NY Slip Op 50599(U) [23 Misc 3d 128(A)] Decided on April 8, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 8, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570706/07.

Lyndon Properties LLC, Petitioner-Appellant,

against

Carl Russomanno d/b/a Russell Products Co., Inc., Respondent-Respondent.

Petitioner appeals from an order of the Civil Court of the City of New York, Bronx County (Nelida Malave-Gonzalez, J.), dated August 30, 2007, which granted respondent's motion to dismiss the holdover petition and to be restored to possession of the subject commercial premises.

Per Curiam.
Order (Nelida Malave-Gonzalez, J.), dated August 30, 2007, reversed, with $10 costs, motion denied, and petition and default final judgment reinstated.

The absence of a 10-day notice to quit was not fatal to petitioner's eviction claim in the circumstances here presented, where respondent, after conveying title to the building premises, remained in possession with the purchaser's permission for a fixed term (now ended) pursuant to a written "Possession Agreement" (cf. RPAPL 713[8]). There being no other jurisdictional impediment, that branch of respondent's motion seeking dismissal of the holdover petition should have been denied. Nor is a proper basis found in the record to vacate respondent's default in answering the holdover petition, where respondent, whose possessory interest in the premises long ago expired, has failed to show a meritorious defense.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 08, 2009