Daley v Billinghurst

[*1] Daley v Billinghurst 2004 NY Slip Op 51621(U) Decided on December 14, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 14, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-169 K C

GLENROY DALEY, Respondent,

against

LESLIE BILLINGHURST, Appellant.

Appeal by tenant from a final judgment of the Civil Court, Kings County (T. Fitzpatrick, J.), entered October 22, 2002, awarding landlord possession in a summary holdover proceeding, and from an order of the same court, entered January 24, 2003, denying tenant's motion to vacate the parties' stipulation settling the proceeding.

Appeal from final judgment unanimously dismissed.

Order unanimously affirmed without costs.

Tenant entered into a stipulation settling the instant holdover proceeding, pursuant to which she agreed, inter alia, to surrender possession on or before a date certain and to the entry of a final judgment awarding possession to landlord.
Accordingly, she is not "aggrieved" by the final judgment and no appeal therefrom lies (CPLR 5511; e.g. Brown v Chase, 3 Misc 3d 129[A], 2004 NY Slip Op 50371[U] [App Term, 2d & 11th Jud Dists]).

We also cannot agree that the stipulation should have been vacated because landlord never served certain adult persons alleged to occupy the premises with tenant. Tenant stipulated that only she and her children occupied the portion of the premises from which she agreed to vacate, and it is well settled that a tenant's minor children need not be made parties to a summary holdover proceeding to be removed from a premises pursuant to a warrant issued thereunder [*2](Loira v Anagnastopolous, 204 AD2d 608, 609 [1994]; Kuprewicz v Muktadir, 2002 NY Slip Op 40527[U] [App Term, 2d & 11th Jud Dists]; 2 Dolan, Rasch's Landlord and Tenant-Summary Proceedings, § 38:31, at 596-597 [4th ed]). To the extent that persons affected include adults who may or may not be tenant's children, none of the persons named in the stipulation or in the affidavits supporting the November 5, 2002 motion to vacate the stipulation have appealed to this court, nor in any event, did they establish an independent possessory interest in the premises to be vacated (e.g. New York City Hous. Auth. v Kilafofski, NYLJ, June 6, 1996 [App Term, 2d & 11th Jud Dists]). [*3]

We note that tenant's proof that landlord conveyed his title to the premises before commencing the holdover proceeding, submitted for the first time in support of a post-judgment motion to restore her to possession (which the court denied without reaching the merits), is not properly before us (cf. CPLR 5517). Moreover, even if said proof could be considered, it would not alter the result. Having stipulated to the final judgment, pursuant to which landlord surrendered a substantial claim for unpaid rent, tenant waived any objection to landlord's standing to commence the proceeding as such objection does not implicate the court's subject matter jurisdiction (Cortazzo v Reynolds, 149 Misc 2d 210, 211 [App Term, 9th & 10th Jud Dists 1991]; see also Woodlaurel, Inc. v Wittman, 163 AD2d 383, 384 [1990]).

Decision Date: December 14, 2004