Esposito v Ango

[*1] Esposito v Ango 2004 NY Slip Op 50555(U) Decided on June 3, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:ARONIN, J.P., GOLIA and RIOS, JJ.
NO. 2003-725 RI C

ANTHONY ESPOSITO, Respondent,

against

HALIMATO ANGO, Appellant.

Appeal by tenant from so much of an order of the Civil Court, Richmond County (G. Lebovits, J.), dated August 23, 2002, as denied tenant's motion to vacate a stipulation of settlement and to dismiss the petition.

Order unanimously modified by providing that tenant's motion is granted to the extent of striking the term of the stipulation relating to the payment of rent and use and occupancy and the term thereof providing for the entry of a money judgment, vacating the portion of the final judgment that awarded landlord $1,100, and dismissing landlord's cause of action seeking to recover arrears in rent and/or use and occupancy; as so modified, affirmed without costs.

The structure in which tenant's apartment is located contains four residential units and is thus a multiple dwelling (Multiple Dwelling Law § 4 [7]). The fact that the structure has two addresses with separate entrances does not alter this conclusion, since one of the four apartments straddles both addresses, which also have common heat and hot water facilities and common ownership (cf. Gottlieb v Mirabal, 123 AD2d 574 [1986]). Because there is no multiple dwelling registration for the premises, rent and use and occupancy cannot be recovered (Multiple Dwelling Law § 325 [2]; Meaders v Jones, NYLJ, June 30, 2003 [App Term, 2d & 11th Jud Dists]; Willoughby Assocs. v Dance-Lonesome, NYLJ, June 6, 2003 [App Term, 2d & 11th Jud Dists]). Accordingly, we strike the monetary provisions of the stipulation and final judgment and dismiss landlord's cause of action for arrears.

We note that it was an abuse of discretion for the lower court not to vacate the stipulation [*2]in view of the timely request by the then pro se tenant for such relief and the lack of the prejudice to landlord. However, in view of the fact that tenant has voluntarily vacated the premises, the award of possession shall remain.
Decision Date: June 03, 2004