Calmark Corp. v Agape Med. Care, P.C.

[*1] Calmark Corp. v Agape Med. Care, P.C. 2004 NY Slip Op 51318(U) Decided on November 1, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
2003-1766 K C -x

CALMARK CORP., Appellant,

against

AGAPE MEDICAL CARE, P.C. and ADELINE LOUIS CHARLES M.D., Respondent. -x

Appeal by sublessor, on the ground of inadequacy, from an order of the Civil Court, Kings County (D. Silber, J.), entered on October 21, 2003, deemed an appeal from a judgment entered pursuant thereto, on October 21, 2003, awarding it the principal sum of $7,878.55.

Judgment unanimously affirmed without costs.

The right of direct appeal from the order terminated with the entry of judgment in this proceeding (Matter of Aho, 39 NY2d 241 [1976]). However, in accordance with CPLR 5520 (c), we deem the appeal to be from the final judgment entered pursuant to [*2]
said order. The issues raised on appeal from said order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

Contrary to sublessor's contention, the judgment of the court below should not be disturbed since sublessor failed to establish that the undertenants breached the terms of the stipulation of settlement of the proceeding. The moving papers failed to allege that undertenants did not return the keys and vacate the premises by September 20, 2003.
Decision Date: November 01, 2004