Beck, Mack & Oliver, LLC v Armstrong Capital, LLC

[*1] Beck, Mack & Oliver, LLC v Armstrong Capital, LLC 2013 NY Slip Op 51661(U) Decided on October 11, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570470/13.

Beck, Mack & Oliver, LLC, Petitioner-Sublandlord- Respondent,

against

Armstrong Capital, LLC, Respondent-Subtenant-Appellant, -and- "XYZ CORPORATION," Respondent.

Respondent Armstrong Capital, LLC, as limited by its briefs, appeals from (1) an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), dated October 17, 2012, which denied its preanswer motion to dismiss the petition in a nonpayment summary proceeding, (2) so much of an order (same court and Judge), dated March 18, 2013, which granted petitioner's motion for summary judgment dismissing the first affirmative defense and denied respondent's cross motion for summary judgment dismissing the petition, and (3) a final judgment (same court and Judge), entered April 25, 2013, which awarded petitioner possession and a recovery of rent arrears in the sum of $113,424.68.

Per Curiam.

Final judgment (Margaret A. Chan, J.), entered April 25, 2013, affirmed, with $25 costs. Appeal from orders (Margaret A. Chan, J.), dated, respectively, October 17, 2012 and March 18, 2013, dismissed, without costs, as subsumed in the appeal from the final judgment.

We agree that the nonpayment petition, as supplemented by the floor plan annexed thereto, accurately described the commercial premises sought to be recovered (see RPAPL 741[2]). Notably, the floor plan annexed to the petition is identical to the one contained in the governing sublease agreement and used therein to identify the demised premises. In the absence of any misdirection of process or confusion as to the location of subtenant's space, respondent-appellant's preanswer dismissal motion was properly denied (see Kit Ming Corp. v Tsang, 2001 NY Slip Op 40305[U] [App Term, 1st Dept 2001]).

In the absence of any challenge by appellant to the court's substantive determination as to the substantial (over $113,000) rent arrears shown to be owed, we sustain the possessory judgment awarded petitioner on its rent claim. [*2]

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 11, 2013