BGB Realty, LLC v Annunziata

[*1] BGB Realty, LLC v Annunziata 2006 NY Slip Op 51270(U) [12 Misc 3d 136(A)] Decided on June 28, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-631 W C.

BGB Realty, LLC, Respondent-Appellant,

against

Frank Annunziata and NORTH WHITE AUTO CORP., Appellants-Respondents.

Appeal and cross appeal from a final judgment of the Justice Court of the Town of North Castle, Westchester County (Robert J. McGoey, J.), entered December 21, 2004. The final judgment awarded landlord possession and the sum of $10,045 in a holdover summary proceeding.

Appeal, insofar as taken by North White Auto Corp., dismissed.

Cross appeal by BGB Realty, LLC dismissed as abandoned.

Final judgment, insofar as reviewed, affirmed without costs.

The appeal by North White Auto Corp. is dismissed because it appears from the record that said corporation was not represented by counsel at any time prior to entry of the final judgment. The corporation was therefore in default (see CPLR 321[a]; Lohmann v Castleton Gallery, 252 AD2d 482 [1998]), and no appeal lies from a final judgment entered upon the default of an appealing party (see CPLR 5511; Matter of Baptiste v Emmanuel, 21 AD3d 503 [2005]).

Appellant Annunziata contends that this commercial holdover proceeding should have been dismissed because there was no notice of termination. This contention lacks merit because the tenancy was for a definite term and "no notification [is] necessary to terminate a tenancy for a definite term" (Real Property Law § 232-b; see Adams v City of Cohoes, 127 NY 127 [1891]). Annunziata also contends that he is not liable for use and occupancy because there was no [*2]agreement to pay rent, even during the definite term - - his obligation during said term being limited to his making specified repairs and obtaining insurance. This contention also fails because the obligation of a tenant who holds over after the expiration of his term to pay use and occupancy (see Jaroslow v Lehigh Val. R.R. Co., 23 NY2d 991 [1969]; Rascoff/Zsyblat Org. v Directors Guild of Am., 297 AD2d 241, 242 [2002]) is imposed by law based on a theory of quantum meruit and is not based on an agreement to pay rent (Eighteen Assocs. v [*3]
Nanjim Leasing Corp., 257 AD2d 559 [1999]; Phillips v Cohen, 2002 NY Slip Op 40235[U] [App Term, 9th & 10th Jud Dists]). We have examined Annunziata's other contentions and find them to be equally without merit.

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: June 28, 2006