Allied Bldrs. v Banjoku

[*1] Allied Bldrs. v Banjoku 2005 NY Slip Op 50075(U) Decided on January 27, 2005 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 27, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: January 27, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and RIOS, JJ.
2004-386 Q C

ALLIED BUILDERS, Respondent,

against

ALIMI A. BANJOKU, a/k/a ALIMI A. BANJOKO, PFS GROUP, INC. and J.M.B. GROUP, INC., Appellants.

Appeal by defendants from a decision of the Civil Court, Queens County (K. Kerrigan, J.), entered on June 19, 2003, after trial as to defendant Alimi A. Banjoku a/k/a Alimi A. Banjoko and after inquest as to defendants PFS Group, Inc. and J.M.B. Group, Inc., deemed, as to defendant Banjoku, to be from a judgment, entered July 28, 2003, awarding plaintiff the principal sum of $3,900 as against him and dismissing his counterclaim.

Appeal by defendants PFS Group, Inc. and J.M.B. Group, Inc. unanimously dismissed.

Judgment insofar as against defendant Banjoku unanimously affirmed without costs.

At the outset we note that with respect to defendants PFS Group, Inc. and J.M.B. Group Inc., no appeal lies from a decision or from a judgment entered on default.

Defendant Banjoku's central contention upon this appeal - that because there was no written lease in effect during the period at issue, he is not required to pay either rent or use and occupancy - is without merit. Absent a reservation in the grant, an owner of leased property conveys its lessor's interest in that property as part of the conveyance (see 74 NY Jur 2d, Landlord and Tenant § 132). Plaintiff herein purchased the subject premises at foreclosure. The premises had been leased to defendants prior thereto. As provided in paragraph 20 of the rider to the expired lease, tenants' holding over created a month-to-month tenancy subject to all terms and conditions of the lease except for its duration and the monthly rent, which was to be double the [*2]amount payable at the expiration of the lease. The only lease term that plaintiff attempted to change was the rent; upon purchasing the premises, plaintiff notified defendants that they were holding over, were month-to-month tenants and were being charged $1,300 per month, considerably less than the doubled rent provided for in the rider to the lease, which governs over any conflicting provisions in the form lease. Defendants did not object to this and continued to occupy the premises; in the circumstances, the court was entitled to find that this silence constituted acceptance (Russell v Raynes Assocs. Ltd. Partnership, 166 AD2d 6, 15 [1991]), and defendants' refusal to pay the rent to be a breach.

Moreover, even if a formal landlord-tenant relationship is absent, the court properly found, based on the rent in effect at the end of the lease term and the rider provision, that the $1,300 per month that plaintiff sought was a reasonable amount for defendants' use and occupancy of the premises (Real Property Law § 220; see 1400 Broadway Assocs. v Lee & Co. of NY, 161 Misc 2d 497, 499 [Civ Ct, NY County 1994]).

We further find that the dismissal of the counterclaim was proper, as no proof was presented upon it.

We note that the corporate defendants subsequently moved to vacate the default judgment entered against them. No appeal has been taken from the denial of said motion. In any event, for the reasons set forth above, no basis exists to disturb the judgment.
Decision Date: January 27, 2005