Hines v Ambrose

[*1] Hines v Ambrose 2010 NY Slip Op 50442(U) [26 Misc 3d 144(A)] Decided on March 10, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and IANNACCI, JJ
2008-1693 S C.

Donna Hines, Respondent,

against

Wynell Ambrose, Appellant, -and- JOHN DOE and JANE DOE, Undertenants.

Appeal from a final judgment of the District Court of Suffolk County, Second District (C. Stephen Hackeling, J., on stipulation), entered June 12, 2008, and from an order of the same court (Madeleine A. Fitzgibbon, J.) dated August 26, 2008. The final judgment, entered pursuant to a stipulation on the record, awarded landlord possession and the sum of $3,734 in a nonpayment summary proceeding. The order denied tenant's motion to set aside the final judgment and stipulation.

ORDERED that the appeal from the final judgment is dismissed; and it is further,

ORDERED that the order is reversed without costs, tenant's motion to vacate the stipulation and final judgment is granted, and the matter is remitted to the District Court for all further proceedings.

The direct appeal from the final judgment is dismissed because no appeal lies from a final judgment entered on consent (CPLR 5511; Tongue v Tongue, 61 NY2d 809 [1984]).

In this nonpayment proceeding, tenant, while appearing pro se, stipulated to the entry of a final judgment awarding landlord possession and the sum of $3,734, at least $1,620 of which represented monies owed toward a security deposit. Since landlord improperly included in the petition and in the final judgment amounts sought toward a security deposit, which amounts are not "rent" (RPAPL 711 [2]) and not within the jurisdiction of the court in a summary proceeding [*2](225 Holding Co., LLC v Beal, 12 Misc 3d 136[A], 2006 NY Slip Op 51269[U] [App Term, 9th & 10th Jud Dists 2006]; Graham Realty Assoc. LLC v Peller, 11 Misc 3d 132[A], 2006 NY Slip Op 50352[U] [App Term, 2d & 11th Jud Dists 2006]), the order denying tenant's motion to vacate the stipulation and final judgment is reversed, tenant's motion is granted and the matter is remitted to the District Court for all further proceedings.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: March 10, 2010