Lido Realty, LLC v Thompson

[*1] Lido Realty, LLC v Thompson 2008 NY Slip Op 51105(U) [19 Misc 3d 144(A)] Decided on May 27, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 27, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2007-612 K C.

Lido Realty, LLC, Appellant,

against

Dennis A. Thompson and Martina Thompson, Respondents.

Appeal from an order of the Civil Court of the City of New York, Kings County (Oymin Chin, J.), dated March 14, 2007. The order, upon a motion by tenants to amend their answer, dismissed the nonpayment summary proceeding.

On the court's own motion, the notice of appeal from the order dated March 14, 2007 is treated as an application for leave to appeal, and leave to appeal is granted (CCA 1702 [c]).

Order reversed without costs, petition reinstated and matter remanded to the court below for determination of tenants' motion to amend their answer.

An appeal as of right does not lie from the order dated March 14, 2007, which did not determine a demand for relief made on notice (see CCA 1702 [a] [2]; Cucaj v Paramount Fee, L.P., 17 Misc 3d 130[A], 2007 NY Slip Op 51976[U] [App Term, 2d & 11th Jud Dists 2007]; 1010 Realty LLC v Stevens, 15 Misc 3d 136[A], 2007 NY Slip Op 50864[U] [App Term, 2d & 11th Jud Dists 2007]). However, under the circumstances of this case, we find it appropriate to deem the notice of appeal to be an application for leave to appeal and to grant such leave (see Gunn v Sound Shore Med. Ctr. of Westchester, 5 AD3d 435 [2004]).

Landlord commenced this nonpayment summary proceeding by notice of petition and petition dated December 26, 2006. After submitting an answer pro se, tenants retained counsel, who moved to amend tenants' answer to interpose defenses, including lack of subject matter jurisdiction on the ground that tenants had vacated the premises after the commencement of the proceeding, and to assert a counterclaim based upon an alleged breach of the warranty of [*2]habitability. By order dated March 14, 2007, the court dismissed the proceeding without prejudice to landlord commencing a plenary action for the arrears on the ground that tenants had surrendered the keys on February 22, 2007.

A tenant's removal from the premises subsequent to the commencement of the proceeding does not deprive the court of subject matter jurisdiction (see e.g. Sowalsky v MacDonald Stamp Co., 31 AD2d 582 [1968]; Spa 79 M.L.P. v Discount Liquidators Inc., 10 Misc 3d 143[A], 2006 NY Slip Op 50099[U] [App Term, 9th & 10th Jud Dists 2006]; 2 Dolan, Rasch's Landlord and Tenant — Summary Proceedings § 38:27, at 593 [4th ed]). Accordingly, the instant proceeding should not have been dismissed. In view of the foregoing, the matter is remanded to the court below for determination of tenants' motion to amend their answer.

Pesce, P.J., Weston Patterson and Golia, JJ., concur,