Eklecco Newco, LLC v Chagit, Inc.

[*1] Eklecco Newco, LLC v Chagit, Inc. 2006 NY Slip Op 51421(U) [12 Misc 3d 143(A)] Decided on July 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 12, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1885 RO C.

EKLECCO NEWCO, LLC, Respondent,

against

CHAGIT, INC. d/b/a NB LEATHER, Appellant.

Appeal from a final judgment of the Justice Court of the Town of Clarkstown, Rockland County (Victor J. Alfieri, Jr., J.), entered June 30, 2005. The final judgment awarded landlord possession and the sum of $58,007.07 in a holdover summary proceeding. The appeal from the final judgment brings up for review an order incorporated therein denying tenant's motion to dismiss the proceeding.

Final judgment reversed without costs, order modified by providing that tenant shall have 15 days from the date of the order hereon to serve and file an answer, and matter remanded to the Justice Court for all further proceedings.

In view of the documented course of dealings between tenant and landlord's managing agent, Pyramid Management Group, Inc. (Pyramid), including, in particular, the rent payback agreement executed by Pyramid and tenant, tenant cannot be heard to claim that it did not know that Pyramid was landlord's managing agent. Tenant's claim that it believed that Pyramid was merely landlord's "revenue agent" is insufficient under the circumstances to raise a triable issue of fact. Thus, the Justice Court's denial of tenant's motion to dismiss was proper. In addition, tenant's contention that CPLR 3211 (f) automatically extended its time to answer is without merit since said section is inapplicable in a summary proceeding (see CPLR 404 [a]; Matter of Dodge, 25 NY2d 273, 286-287 [1969]). However, the record discloses that the court was aware that tenant had meritorious defenses to this proceeding, including, among others, the defense of partial payment. Thus, the court should have permitted tenant to answer, particularly since tenant had surrendered possession of the premises and was not merely seeking to delay its eviction. Accordingly, we reverse the final judgment and modify the order so as to permit tenant time to serve and file an answer.

Rudolph, P.J., Angiolillo and Lippman, JJ., concur. [*2]
Decision Date: July 12, 2006