Mengoni v Gleason

[*1] Mengoni v Gleason 2010 NY Slip Op 51819(U) [29 Misc 3d 130(A)] Decided on October 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570002/10. March 2010 Term

Fred Mengoni, Petitioner-Landlord-Appellant,

against

Scot Gleason, Respondent-Tenant-Respondent, and Ingrid Johnson, Respondent-Undertenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Eardell J. Rashford, J.), dated September 3, 2009, which denied his motion for summary judgment and dismissed the petition in a nonpayment summary proceeding.

Per Curiam.

Order (Eardell J. Rashford, J.), dated September 3, 2009, reversed, with $10 costs, petition reinstated, and landlord's motion for summary judgment granted to the extent of awarding him a money judgment in the principal sum of $34,776.06. The Clerk is directed to enter judgment accordingly.

While unwarranted, the landlord's refusal to accept tenant's tender of the rent fixed in the 2006 DHCR rent reduction order during the pendency of landlord's (unsuccessful) challenge to the agency order did not, on this record and without more, evince an intent to "manipulat[e] the tenant with the tenant's ultimate inability to satisfy a judgment and consequent eviction in mind" (cf. Haberman v Singer, 3 AD3d 188, 192 [2004]) or serve to extinguish landlord's right to enforce the rental obligations imposed upon tenant under the governing stabilized lease and extant agency order. Landlord remains entitled to collect the rent arrears otherwise unchallenged by tenant, albeit in the form of the nonpossessory judgment now sought by landlord.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: October 22, 2010