Otufale v Whetstone

[*1] Otufale v Whetstone 2010 NY Slip Op 50031(U) [26 Misc 3d 130(A)] Decided on January 13, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 13, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Heitler, J.P., Shulman, J.
570456/08

Adegboyega Otufale, d/b/a GST Computer Services Ltd., Petitioner-Respondent,

against

Francisca Whetstone and El Nuevo Encuentro Bar Corp., Respondents-Appellants.

Respondents appeal from a final judgment of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered on or about June 12, 2008, after a nonjury trial, which awarded petitioner possession and a money judgment of $19,154.63 in a nonpayment summary proceeding.

Per Curiam.

Final judgment (Donald A. Miles, J.), entered on or about June 12, 2008, modified to vacate the money judgment as against respondent-appellant Whetstone, and as modified, affirmed, without costs.

Respondents' arguments that petitioner's oral demand was insufficient to serve as a predicate for this commercial nonpayment summary proceeding and that petitioner was required to give respondents additional written notice of the demand are unpreserved and, in any event, without merit (see RPAPL 711[2]; Muss & Sons v Rozany, 170 Misc 2d 890, 892 [1996]; see also Four Star Holding Co. v Alex Furs, Inc., 153 Misc 2d 447 [1992]). Additionally, respondents waived any defense based on petitioner's alleged lack of standing to maintain the proceeding since they failed to raise that defense either in their answer or by way of a pre-answer motion (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239 [2007]; Security Pacific Natl. Bank v Evans, 31 AD3d 278 [2006], appeal dismissed 8 NY3d 837 [2007]). In any event, petitioner was entitled to maintain this proceeding (see RPAPL 721[1]). The trial court correctly determined that the corporate tenant, respondent El Nuevo Encuentro Bar Corp., is obligated under the terms of the governing lease agreement and the course of conduct between the parties to pay rent and additional rent for real estate taxes, insurance, late fees and water charges in the principal sum of $19,154.63 through June 2008.

Since both the lease and lease rider clearly identified El Nuevo Encuentro Bar Corp. as the tenant and nothing in those documents suggests that respondent Whetstone was personally [*2]responsible for any rent or additional rent, the money judgment must be vacated as against her (cf. Gerald Syndicate, Inc. v Negev Home Made Foods, Inc., 198 AD2d 92 [1993], lv dismissed 83 NY2d 845 [1994]).



THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur



Decision Date: January 13, 2010