Smith v Country Serv., Inc.

[*1] Smith v Country Serv., Inc. 2006 NY Slip Op 52028(U) [13 Misc 3d 134(A)] Decided on October 5, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and LIPPMAN, JJ
2005-1471 OR C.

David Smith, Respondent,

against

Country Service, Inc., Appellant.

Appeal from a "decision" of the Justice Court of the Town of Wallkill, Orange County (Ray Shoemaker, J.), dated August 26, 2005, deemed (see CPLR 5520 [c]) an appeal from the final judgment entered pursuant thereto on said date. The final judgment, in effect, denied tenant's motion to dismiss the petition and awarded landlord possession and the sum of $2,685.

Final judgment reversed without costs and tenant's motion to dismiss the petition granted.

Contrary to the Justice Court's ruling, the prior determination of the Supreme Court with respect to the preliminary injunction sought by tenant lacks preclusive effect (see BFP 245 Park Co. v GMAC Commercial Mtge. Corp., 12 AD3d 330 [2004] ["the determination on a preliminary injunction lacks preclusive effect"]; Coinmach Corp. v Fordham Hill Owners Corp., 3 AD3d 312 [2004]) and thus does not establish that the lease was properly terminated. In our opinion, the termination notice was ineffective because it was issued by an attorney not named in the lease and was not accompanied by proof of the attorney's authority to issue the notice; nor was there any claim or proof showing that tenant had reason to know of the attorney's authority to act. Under the circumstances, the petition must be dismissed (see Siegel v Kentucky Fried Chicken of Long Is., 67 NY2d 792 [1986], affg 108 AD2d 218 [1985]; 49 W.12 Tenants Corp. v Seidenberg, 6 AD3d 243 [2004]).

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: October 5, 2006