Graham Realty Assoc. LLC v Peller

[*1] Graham Realty Assoc. LLC v Peller 2006 NY Slip Op 50352(U) [11 Misc 3d 132(A)] Decided on March 9, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2005-543 K C.

Graham Realty Associates LLC, Respondent,

against

Arlene Peller, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Inez Muniz-Hoyos, J.), entered March 14, 2005. The order denied tenant's motion, in a nonpayment summary proceeding, to vacate a stipulation and the possessory final judgment, in the sum of $2,668.75, entered pursuant thereto.

Order reversed without costs and tenant's motion to vacate the stipulation and the final judgment granted.

Tenant's proof in the record adequately established that landlord included a security deposit of $783.75 and a carbon monoxide detector fee of $25 in the stipulation and in the possessory final judgment entered pursuant thereto in the sum of $2,668.75. Inasmuch as a security deposit is not "rent" (RPAPL 711 [2]; see General Obligations Law § 7-101 [1]) and, in the context of this rent-stabilized tenancy, the carbon monoxide detector fee cannot be considered "rent" (Related Tiffany v Faust, 191 Misc 2d 528 [App Term, 2d & 11th Jud Dists]), the court did not have subject matter jurisdiction over these items (Matter of Bedford Gardens Co. v Silberstein, 269 AD2d 445 [2d Dept 2000]) and could not include them in the final judgment. Accordingly, tenant's motion to vacate the stipulation and final judgment is granted.

Pesce, P.J., Weston Patterson and Rios, JJ., concur. [*2]
Decision Date: March 9, 2006