Khokar v Nihar

[*1] Khokar v Nihar 2007 NY Slip Op 50727(U) [15 Misc 3d 134(A)] Decided on April 6, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 6, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2005-1459 K C.

Nasim Khokar, Respondent,

against

Ali B. Nihar, Appellant.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Anthony J. Fiorella, Jr., J.), entered August 2, 2005. The final judgment awarded landlord possession and the sum of $11,200 in a nonpayment summary proceeding.

Final judgment reversed without costs and matter remanded for trial.

In this nonpayment proceeding, the petition, which alleges the existence of an oral agreement between the parties, seeks arrears in the sum of $8,000, representing rent of $800 per month from June 2004 through March 2005. In his answer, tenant denied the material allegations of the petition. On May 16, 2005, tenant, by counsel,
stipulated to pay $4,000 into escrow and to timely pay June and July 2005 rent. On the adjourned trial date, August 1, 2005, tenant specifically denied, inter alia, the existence of a rental agreement between landlord and himself, and he claimed that he was not the tenant on the lease but that he and 17 other people had paid rent to the tenant on the lease, who had paid rent to landlord. Without swearing in a witness for either side, or the introduction of any evidence, the court awarded judgment to landlord.

Nothing in the pre-trial stipulation of May 16, 2005 allowed landlord to seek the entry of judgment in the event of a default thereunder by tenant. "Material allegations of the petition, having been denied by the tenant's answer, it was incumbent upon landlord to establish them by evidence upon a trial. . ." (Miressi v Funicello, 277 App Div 931, 932 [1950]; see RPAPL 745 [*2][1]; CPLR 410). Since this was not done, the final judgment is reversed and the matter remanded for trial.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 6, 2007