Furman v DeGeorge

[*1] Furman v DeGeorge 2004 NY Slip Op 50561(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 This opinion is uncorrected and will not be published in the printed Official Reports.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:DECIDED 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. 2002-1445 RI C

EDWARD FURMAN, Respondent,

against

VINCENT DeGEORGE AND JOSEPHINE DeGEORGE, Appellants.

Appeal by tenants from an order of the Civil Court, Richmond County (G. Lebovits, J.), dated August 23, 2002, denying their motion to vacate a stipulation.

Order unanimously affirmed without costs.

In the circumstances presented, tenants' showing that the premises in which their apartment is located may be a de facto multiple dwelling affords no basis to vacate the stipulation settling this holdover proceeding (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]; see Chan v Adossa, 195 Misc 2d 590 [2003]). Inasmuch as all monies due under the stipulation were paid, and inasmuch as their payment was agreed to by tenants as a condition of a stay, the monies must be deemed to have been voluntarily paid and are not recoverable (Multiple Dwelling Law § 325 [2]; see Rosgro Realty Co. v Braynen, 70 Misc 2d 808 [1972]). In view of the foregoing, we do not reach the issue of whether the premises is a multiple dwelling.

We incidentally note that it was error for the Housing Court to rely on photographs and documents which were not submitted into evidence and not properly authenticated.
Decision Date: June 03, 2004