Vacca v Balbuena

[*1] Vacca v Balbuena 2009 NY Slip Op 52176(U) [25 Misc 3d 132(A)] Decided on October 20, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and MOLIA, JJ
2008-327 OR C.

Cesare Vacca, Appellant,

against

Innocencia Balbuena, Respondent, -and- VERLA INTERNATIONAL, LTD., Defendant.

Appeal from a judgment of the City Court of Newburgh, Orange County (Peter M. Kulkin, J.), entered February 25, 2008. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, dismissed plaintiff's cause of action for use and occupancy as against defendant Innocencia Balbuena.

ORDERED that the judgment, insofar as appealed from, is reversed without costs, plaintiff's cause of action for use and occupancy as against defendant
Innocencia Balbuena is reinstated and a new trial is ordered limited to said cause of action.

Plaintiff commenced this small claims action to recover, among other things, use and occupancy from Innocencia Balbuena (defendant), his former tenant. Prior to commencing the instant action, plaintiff had brought a summary proceeding to evict defendant and her family from the apartment. From the limited record before this court, it appears that the summary proceeding resulted in an award to plaintiff of possession and a money judgment. In the instant action, after a nonjury trial, the City Court dismissed plaintiff's claim for use and occupancy for April 2006 and five days in May 2006, holding that plaintiff could not seek use and occupancy in the instant action, but had to seek such damages in the prior summary proceeding. As limited by his brief, plaintiff appeals from so much of the judgment as dismissed his claim for use and [*2]occupancy.

In our view, the City Court's judgment, insofar as appealed from, did not render substantial justice between the parties according to the rules and principles of substantive law (UCCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]).

Contrary to the City Court's ruling, a landlord may bring a separate action to recover the use and occupancy which accrued after the entry of a judgment in a summary proceeding without violating the rule against splitting a cause of action (see Wahl v Warren, 19 Misc 3d 130[A], 2008 NY Slip Op 50537[U] [App Term, 9th & 10th Jud Dists 2008]; see generally Fisher Ave. Realty Partners v Hausch, 186 Misc 2d 609 [App Term, 9th & 10th Jud Dists 2000]). As the record is insufficient to allow for a determination as to whether the rule against splitting a cause of action has been violated here, a new trial is required.

It is noted that the rule against apportionment, which applies to rents, does not apply to use and occupancy (Wahl, 19 Misc 3d 130[A], 2008 NY Slip Op 50537[U]; Marron v Liebenow, NYLJ, June 22, 1994 [App Term, 9th & 10th Jud Dists]; Elliot v Polny, 132 Misc 2d 236 [1986]; see also Hoppenstein v Street Beat Sportswear, NYLJ, Apr. 16, 1996 [App Term, 1st Dept]).

It is further noted that plaintiff's application to file this small claims action listed Innocencia Balbuena as the sole defendant and set forth her address as "Verla International L.T.D. 463 Temple Hill Rd. New Windsor NY 12553." Nevertheless, the small claims summons and judgment list both Innocencia Balbuena and Verla International, Ltd. as defendants. As it is clear that Verla International, Ltd. is
defendant Balbuena's place of employment, it should not have been listed as a defendant. Upon remand, the City Court shall make the appropriate correction.

Nicolai, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: October 20, 2009