2691 Hylan Blvd. LLC v Staten Is. Univ. Hosp.

[*1] 2691 Hylan Blvd. LLC v Staten Is. Univ. Hosp. 2005 NYSlipOp 51158(U) Decided on July 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-1173 RI C

2691 Hylan Boulevard LLC, Respondent,

against

Staten Island University Hospital, Appellant.

Appeals by tenant from (1) an order of the Civil Court, Richmond County (P. Straniere, J.), entered June 2, 2004, which, inter alia, denied a motion by tenant to dismiss the nonpayment proceeding and awarded summary judgment to landlord on the issue of liability only, and (2) a decision after trial of said court, dated July 20, 2004, deemed (see CPLR 5520 [c]) an appeal from a final judgment, entered July 22, 2004, which awarded landlord possession and the sum of $58,366.83.

Final judgment unanimously affirmed with $25 costs.

Appeal from order entered June 2, 2004 unanimously dismissed.

The appeal from the intermediate order must be dismissed because the right to appeal directly therefrom terminated with the entry of the final judgment (see Matter of
Aho, 39 NY2d 241 [1976]). The issues raised on appeal from said order are brought up for review upon the appeal from the final judgment (see CPLR 5501 [a] [1]).

Civil Court properly denied tenant's numerous challenges to the predicate notice raised in a pre-answer motion to dismiss the nonpayment proceeding (CPLR 404 [a]), including the lack of a "date certain" by which rent was to be paid (see Alexander Muss & Sons v Rozany, 170 Misc 2d 890, 891 [App Term, 2d & 11th Jud Dists 1996]; Jendor Indus. v Harvest Year Seafood Rest., 187 Misc 2d 293 [Civ Ct, NY County 2000]), the fact that the rent notice was signed by landlord's agent (see 716 Lefferts, LLC v Goldstock, 5 Misc 3d 129[A], 2004 NY Slip Op 51270[U] [App Term, 2d & 11th Jud Dists]; Wilson Han Assoc., Inc. v Arthur, NYLJ, July 6, 1999 [App Term, 2d & 11th Jud Dists]) and the inclusion of an insubstantial non-rent item in the notice (10 Midwood LLC v Hyacinth, 2003 NY Slip Op 50789[U] [App Term, 2d & 11th Jud Dists]; Washington v Gulbreath, 171 Misc 2d 337, 339 [App Term, 2d & 11th Jud Dists 1997]; see 501 Seventh Ave. Assocs., LLC v 501 Seventh Ave. Bake Corp., 7 Misc 3d 137[A]; 2005 [*2]NY Slip Op 50799[U] [App Term, 1st Dept]). Upon a cross motion by landlord for "summary judgment" based on tenant's alleged failure to timely answer, the court awarded summary judgment to landlord on the issue of liability and refused to permit
tenant to interpose an answer (CPLR 404 [a]; Matter of Dodge, 25 NY2d 273, 286-287 [1969]; Leonia Bank v Kouri, 3 AD3d 213, 221 [2004]; Fisher Ave. Realty Partners v Hausch, 186 Misc 2d 609, 610 [App Term, 9th & 10th Jud Dists 2000]). Without determining whether the court's refusal to permit tenant to answer was a proper exercise of discretion, we find that tenant has demonstrated no harm arising from this decision, as the subsequent trial and the contentions on appeal show, since it merely raises conclusory defenses and points to no factual issues other than those litigated at trial.
We find no error in the court's determination as to the precise sum owed, upon landlord's tender of sufficient, admissible evidence of the base rent and the bills upon which landlord based tenant's share of the additional rent owed (West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950 [2002]; People v DiSalvo, 284 AD2d 547, 548 [2001]; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727, 728 [1986]). In addition, all questions relating to the knowledge of landlord's witness as to
the accuracy of the information contained in the bills "went to the weight, not the admissibility" of said records (William Conover, Inc. v Waldorf, 251 AD2d 727, 728 [1998]). Accordingly, the final judgment is affirmed.
Decision Date: July 21, 2005