Fa Wah Mgt., Inc. v Alvarrez

[*1] Fa Wah Mgt., Inc. v Alvarrez 2008 NY Slip Op 50086(U) [18 Misc 3d 132(A)] Decided on January 4, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 4, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2006-1416 K C.

Fa Wah Management, Inc., Respondent,

against

Zoilo Gavilan Alvarrez d/b/a Juquiliuta Bar & Restaurant, Appellant, -and- John Doe and Jane Doe, Undertenants.

Appeal from a decision of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), dated August 21, 2006, deemed from the final judgment entered thereon on said date (see CPLR 5520 [c]). The final judgment awarded landlord possession in a holdover summary proceeding.

Final judgment affirmed without costs.

In this commercial holdover proceeding, the record reveals that landlord terminated tenant's lease, pursuant to the terms thereof, following tenant's default in the payment of several months' rent. After numerous adjournments of the proceeding, during which there were unsuccessful negotiations for a new lease, the parties entered into two successive stipulations that required tenant to pay landlord certain sums toward use and occupancy and to provide proof of insurance, initially by March 29, 2006, and then, after a default, by April 4, 2006, or the matter would go to inquest. Tenant failed to provide proof of insurance, and an inquest was held, at which landlord established a prima facie case, including proof of tenant's original rent default. The major thrust of tenant's defense at the inquest was that the petition and notice of termination were defective because landlord's true name was "Fai Wa Management, Inc.," not "Fa Wah [*2]Management, Inc.," as stated in the petition and notice, and because tenant's name was spelled with an extra "r" in Alvarez in the petition and notice. Following the inquest, the court properly concluded that tenant was not, and could not reasonably have been, confused by these minor errors (see Oxford Towers Co. v Leites, 41 AD3d 144 [2007]; see also 190 Riverside Drive L.L.C. v Nosei, 185 Misc 2d 696 [App Term, 1st Dept 2000] [a notice which incorrectly designated the apartment number was not invalid]). Accordingly, the court awarded landlord a final judgment of possession.

For the first time on appeal, tenant claims that he subsequently obtained the insurance, which he had stipulated to obtain by April 4, 2006, and that enforcement of the stipulation would be inequitable. However, tenant's claims, which, in any event, are not adequately substantiated, rely on facts that are dehors the record and cannot be raised for the first time on appeal (see Juarbe v City of New York, 303 AD2d 462 [2003]). Moreover, enforcement of the stipulation is not inequitable. Indeed, the stipulation merely required landlord to prove its prima facie case of tenant's payment default at the inquest, and landlord did this. Accordingly, we affirm the final judgment in favor of landlord.

Pesce, P.J., Golia and Rios, JJ., concur.