Macedonia Towers v Gainey

[*1] Macedonia Towers v Gainey 2009 NY Slip Op 51080(U) [23 Misc 3d 143(A)] Decided on May 28, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and SCHEINKMAN, JJ
2008-343 W C.

Macedonia Towers, Respondent,

against

Norman Gainey, Appellant.

Appeal from a final judgment of the City Court of Mount Vernon, Westchester County (Roger Sirlin, J.), entered February 7, 2008. The final judgment, after a nonjury trial, awarded possession to landlord.

Final judgment reversed without costs and final judgment directed to be entered dismissing the petition.

In this holdover proceeding, landlord failed to introduce any evidence at trial to establish that it served tenant with a notice terminating tenant's unexpired lease and, therefore, landlord failed to prove that the tenancy had been terminated (RPAPL 711 [1]). Contrary to landlord's contention on appeal, tenant never waived the requirement
that landlord prove service of a termination notice. In his answer, tenant denied that his tenancy had been terminated by a notice of termination. Moreover, at the end of the trial, tenant moved to dismiss on the ground that landlord had failed to prove service of the notice of termination. While the City Court denied tenant's motion on the ground that such issue had been resolved in landlord's favor on a pretrial motion, we find no support in the record for the court's determination.

As landlord failed to establish its prima facie case, the petition should have been dismissed. In light of our decision, we do not reach any other issue.

Accordingly, we reverse the final judgment and remand the matter for the entry of a final judgment in favor of tenant dismissing the petition. [*2]

Tanenbaum, J.P., Molia and Scheinkman, JJ., concur.
Decision Date: May 28, 2009