Frebar Dev. Corp. v Posner

Frebar Dev. Corp. v Posner 2014 NY Slip Op 07446 Decided on October 30, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 30, 2014
Tom, J.P., Sweeny, Andrias, Moskowitz, Gische, JJ.
13377 103525/10

[*1] Frebar Development Corporation, Plaintiff, Dr. Fred L. Pasternack, Plaintiff-Appellant,

v

Elana Waksal Posner, Defendant-Respondent.

Dr. Fred L. Pasternack, appellant pro se.

Meister Seelig & Fein LLP, New York (Howard S. Koh of counsel), for respondent.

Order, Supreme Court, New York County (Paul Wooten, J.), entered August 7, 2013, which granted defendant's motion to confirm the special referee's report and recommendation, and denied plaintiff landlord's motion to reject the report, unanimously affirmed, without costs.

The special referee did not exceed her authority in holding a second hearing since the issue of what rent was due, including late fees, was not previously determined. Accordingly, it was proper for the special referee to hold a second hearing to determine actual damages in accordance with the court's decision (see Steingart v Hoffman, 80 AD3d 444, 445 [1st Dept 2011]).

Plaintiff landlord's claim for nonpayment of rent from defendant tenant who never took possession of the apartment was properly dismissed since plaintiff failed to establish that the multiple dwelling at issue was registered with the New York City Department of Housing Preservation and Development (see Multiple Dwelling Law § 325[2]; Administrative Code of City of NY § 27-2097[b]; Matter of Blackgold Realty Corp. v Milne, 69 NY2d 719 [1987]; 151 Daniel Low, LLC v Gassab, 43 Misc 3d 134[A] [App Term, 2d Dept 2014]). The dismissal was [*2]appropriately made without prejudice (see 9 Montague Terrace Assoc. v Feuerer, 191 Misc 2d 18 [App Term, 2d Dept 2001]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 30, 2014

CLERK