169 Bowery, LLC v Bowery Dev. Group LLC

[*1] 169 Bowery, LLC v Bowery Dev. Group LLC 2010 NY Slip Op 51265(U) [28 Misc 3d 130(A)] Decided on July 19, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 19, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570329/10.

169 Bowery, LLC, Petitioner-Landlord-

against

Bowery Development Group LLC, Respondent-Tenant-Appellant, "John Doe" "Jane Doe", ABC Co." and "XYZ Corp.", Respondents-Undertenants.

Tenant appeals from 1) an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), dated February 3, 2010, which granted landlord's motion for renewal and reargument, and upon renewal and reargument, struck the traverse previously ordered and directed payment into court of past use and occupancy in the sum of $219,564.80 and ongoing use and occupancy in the sum of $31,366.40 per month pending the trial of this matter, 2) an order (same court and Judge), dated March 15, 2010, which granted landlord's motion to restore this matter for trial and directed a final judgment of possession and a money judgment in landlord's favor, and 3) a final judgment (same court and Judge), entered April 5, 2010, awarding landlord possession and a money judgment in the sum of $219,564.80 in a holdover summary proceeding.

Per Curiam.

Final judgment (Peter H. Moulton, J.), entered April 5, 2010, affirmed, with $25 costs. Appeals from orders (same court and Judge), dated February 3, 2010 and March 15, 2010, dismissed, without costs, since the right of direct appeal from these orders terminated with entry of judgment in the action (see Matter of Aho, 39 NY2d 241 [1976]). The issues raised on the appeals from those orders, to the extent reviewable, are brought up for review on the appeal from the final judgment (see CPLR 5501[a][1]).

Tenant's contention that the court erred in granting landlord's motion for renewal and reargument, and upon renewal and reargument, striking the traverse the court previously ordered, is not properly before us, since the renewal and reargument order was granted on tenant's default. Because tenant was not "aggrieved" by that order, we cannot review it (see Farhadi-Jou v Key Bank of New York, 2 AD3d 1041, 1042 [2003]). In any event, were we to consider tenant's [*2]present contention, we would reject it, since tenant failed to raise a factual issue warranting a traverse on the issue of service of the notice of petition and petition (see Chinese Consol. Benevolent Assn. v Tsang, 254 AD2d 222 [1998]).

Finally, no basis has been shown to disturb the final judgment awarded to landlord in this holdover proceeding. Upon the commercial tenant's failure to timely comply with two court orders for payment of interim use and occupancy, Civil Court properly granted judgment for the landlord (see RPAPL § 745[2][c][i]; Houston Essex Realty Corp. v Club Old Banque Corp., 2 Misc 3d 138[A], 2004 NY Slip Op 50258[U] [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: July 19, 2010