Tyroler v Bowman

[*1] Tyroler v Bowman 2009 NY Slip Op 51765(U) [24 Misc 3d 143(A)] Decided on August 14, 2009 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 14, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570905/07.

Sean Tyroler and Henry Blumer, Petitioners-Landlords- Respondents-Cross-Appellants,

against

Vincent Bowman, Respondent-Tenant-Appellant- Cross-Respondent.

Tenant appeals from that portion of a final judgment of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered November 8, 2007, after a jury trial, which awarded possession to landlords in a holdover summary proceeding. Landlords cross-appeal from that portion of the aforesaid final judgment, which, inter alia, limited their recovery for rent and use and occupancy to $1.

Per Curiam.

Final judgment (Peter H. Moulton, J.), entered November 8, 2007, affirmed, without costs.

A fair interpretation of the trial evidence supports the jury's determination that tenant's apartment unit is incapable of being legalized. The evidence established that the unit was located in an "old law tenement class A multiple dwelling" which lacked "at least two independent means of egress" (Multiple Dwelling Law § 231), a condition shown to be incapable of cure. Having failed to request any specific jury instruction on the applicability of Multiple Dwelling Law § 248, tenant is precluded on appeal from challenging the court's charge or the jury's findings (see CPLR 4110-b; Maskantz v Hayes, 39 AD3d 211 [2007]). In any event, tenant failed to present any expert testimony or competent evidence to support his claim that the subject building is a "Class A" single room occupancy dwelling (see Multiple Dwelling Law § 248).

With respect to landlords' cross appeal, we find no basis to disturb the jury's monetary award.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 14, 2009