Elshiekh v 76th St. Owners Corp.

[*1] Elshiekh v 76th St. Owners Corp. 2012 NY Slip Op 51453(U) Decided on July 25, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 25, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-1618 Q C.

Fouad Elshiekh, Appellant,

against

76th Street Owners Corp., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Michael J. Pinckney, J.), dated December 16, 2010. The order, insofar as appealed from as limited by the brief, in effect, dismissed so much of the petition as sought the correction of a violation for a "broken or defective intercom system," and denied, without prejudice to renewal in a proper forum, the branch of petitioner's motion seeking an abatement of rent due to the lack of intercom service, in an HP proceeding.

ORDERED that so much of the appeal as is from the portion of the order which, in effect, dismissed so much of the petition as sought the correction of a violation in regard to a "broken or defective intercom system," is dismissed; and it is further,

ORDERED that the order, insofar as reviewed, is affirmed, without costs.

In January 2010, petitioner (tenant) commenced this HP proceeding seeking an order directing respondent (landlord) to correct violations, including a "broken or defective intercom system." During the pendency of the proceeding, tenant moved for, among other things, an abatement in rent due to his lack of intercom service since 2003. By order dated December 16, 2010, the Civil Court, among other things, denied the branch of tenant's motion seeking an abatement in rent without prejudice to renew in a proper forum, and held that since "the [*2]petitioner-shareholder is prohibiting the Owner from removing the violation, the Court will not issue an order directing its removal." The court noted that the only reason tenant did not have intercom service was that he refused to provide landlord with a phone number and, therefore, it would not order landlord to correct the "broken or defective intercom system" violation. On appeal, tenant contends, among other things, that landlord should provide him with intercom service and he should recover damages for his lack of intercom service since 2003.

In a holdover proceeding that landlord commenced against tenant in October 2009, after the cooperative board had voted to terminate tenant's proprietary lease due to tenant's "objectionable behavior," the Civil Court, by order dated July 16, 2010, awarded landlord possession. Tenant has since been evicted. Inasmuch as tenant is no longer in possession, he now lacks standing to maintain an HP proceeding (see Finkelstein and Ferrara, Landlord and Tenant Practice in New York § 16:236) and, accordingly, so much of the appeal as is from the portion of the order that, in effect, dismissed so much of the petition as sought the correction of a violation in regard to a "broken or defective intercom system," is dismissed as moot.

Since, in an HP proceeding, the Housing Part does not have jurisdiction to award an abatement of rent (CCA 110), the Civil Court properly denied the branch of tenant's motion seeking an abatement of rent without prejudice to renewal in a proper forum. Accordingly, the order, insofar as reviewed, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 25, 2012