Good Samaritan Hosp. Med. Ctr. v Periconi

[*1] Good Samaritan Hosp. Med. Ctr. v Periconi 2005 NYSlipOp 50780(U) Decided on May 23, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 23, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
2004-1195 S C

GOOD SAMARITAN HOSPITAL MEDICAL CENTER, Respondent,

against

PETER J. PERICONI, Appellant.

Appeal by tenant from an order of the District Court, Suffolk County (J. Flanagan, J.), dated May 17, 2004, granting landlord a judgment of possession and a judgment for rent arrears in the amount of $9,239.48, plus costs and disbursements, and dismissing tenant's counterclaims, deemed (see CPLR 5520 [c]) an appeal from a final judgment entered pursuant thereto on June 25, 2004.

Final judgment unanimously affirmed without costs.

Landlord Good Samaritan Hospital Medical Center brought this summary holdover proceeding to recover possession of a commercial office suite from the tenant, a medical doctor, as well as rent arrears. The tenant interposed various defenses and counterclaims, including that he had been told by an agent of the landlord that he would be permitted to remain in possession until his retirement. Following a nonjury trial, the court requested that the parties contact chambers on the following day to arrange a schedule for the submission of memoranda of law. When the parties failed to contact chambers, the court rendered a decision, finding that there was a month-to-month tenancy by virtue of the tenant's holding over after the termination of a prior lease with a previous landlord and the hospital's acceptance of monthly rent, that the landlord hospital had proved the allegations of the holdover petition by a fair preponderance of the credible evidence, that the notice of termination was enforceable, and that the tenant was in arrears. Moreover, it found that the tenant had failed to show any merit to his defenses, and did not prove his counterclaims. Accordingly, the landlord was granted a final judgment of [*2]possession and a money judgment in the amount of $9,239.48, plus costs and disbursements. We note that the court's findings were amply supported by the record.

Tenant contends on appeal that the court below erred in rendering its decision without providing the parties an opportunity to make closing arguments or to submit requests for findings of fact, and asks that the court's order be vacated and a new trial be granted. However, the lower court merely requested that the parties submit to it memoranda of law and nothing more. Inasmuch as tenant neither requested an opportunity to make a closing argument nor objected to the omission of summations, said failure constituted a waiver, and the issue was not preserved for appellate review (see Mauro v DeGroodt, 271 AD2d 892 [2000]; Matter of Miriam MM, 165 AD2d 934 [1990]). Furthermore, tenant did not request to submit proposed findings of fact. Where a party fails to request that it be permitted to submit proposed findings of fact, it waives its right to do so (see Dopp v Crandall, 184 AD2d 978 [1992]; Deeb v Drake, 184 AD2d 947 [1992]).
Decision Date: May 23, 2005