Best v Buday

[*1] Best v Buday 2007 NY Slip Op 50987(U) [15 Misc 3d 139(A)] Decided on March 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and LaCAVA, JJ
2006-437 W C.

Anne Best, Appellant,

against

Tanit Buday, Respondent, PIA BUDAY, Tenant.

Appeal from a final judgment of the City Court of Yonkers, Westchester County (Robert C. Cerrato, J.), entered February 3, 2005. The final judgment, insofar as appealed from, upon awarding landlord possession, conditionally stayed issuance of the warrant indefinitely in a holdover summary proceeding.

Final judgment, insofar as appealed from, affirmed without costs.

Our review of the record in this holdover proceeding reveals that the breach complained of by landlord - - tenant Tanit's Buday's failure to provide landlord with a key - - was cured prior to trial and that the breach may have resulted from tenant's fears of the cooperative's workmen, who, she claims, had sexually harassed her. Our review further indicates that landlord's notice of termination was defective in that it did not terminate the claimed month-to-month tenancy on the date of the expiration of the rental period (see Sills v Dellavalle, 9 AD3d 561 [2004]). In view of tenant's failure to cross-appeal from the portion of the final judgment that awarded possession to landlord, this court is precluded from reversing that portion [*2]of the final judgment. While this court would not ordinarily sustain an indefinite stay of a warrant where a holdover final judgment was properly entered (Landmark Props. v Olivo, 10 Misc 3d 1 [App Term, 9th & 10th Jud Dists]; see First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630, 637 [1968]), in our view, the instant final judgment was not warranted. Therefore, in the circumstances presented, we decline to reverse the portion of the final judgment that indefinitely stayed issuance of the warrant.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.