Mauer-Bach Realty LLC v Gomez

[*1] Mauer-Bach Realty LLC v Gomez 2014 NY Slip Op 50845(U) Decided on May 30, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 30, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570186/14

Mauer-Bach Realty LLC, Petitioner-Landlord-Appellant, -

against

Margarita Gomez a/k/a Zoila Margarita Gomez, Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Sheldon J. Halprin, J.), dated November 25, 2013, which denied, as moot, landlord's motion to amend the petition and for summary judgment in a nonpayment summary proceeding.

Per Curiam.

Order (Sheldon J. Halprin, J.), entered September 30, 2013, reversed, with $10 costs, landlord's motion granted to the extent of awarding it a money judgment in the principal sum of $4,569.24, and matter remanded to Civil Court for further proceedings in accordance with this decision.

Landlord's unopposed motion to amend the nonpayment petition and for summary judgment thereon should have been granted, based on its persuasive and unrebutted showing that tenant, despite due demand, failed to pay rent arrears of over $4,500 shown to have been owed through October 2013. Nor was the court divested of jurisdiction over the rent and related issues framed by the petition by reason of the tenant's voluntary vacatur of the apartment premises during the pendency of the proceeding (see Sowalsky v E.F. MacDonald Stamp Co., 31 AD2d 582, 582 [1968]; Tricarichi v Moran, 38 Misc 3d 31, 32-33 [2012]). We remand the matter for such further proceedings as may be necessary to determine the merits of landlord's application for attorneys' fees, an issue not addressed below.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: May 30, 2014