Michalak v Fechtel

[*1] Michalak v Fechtel 2010 NY Slip Op 50946(U) [27 Misc 3d 140(A)] Decided on May 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 21, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., LaCAVA and IANNACCI, JJ
2009-164 W C.

John Michalak, Respondent,

against

R. Brian Fechtel a/k/a BRIAN FECHTEL, Appellant.

Appeals from a final judgment and orders of the City Court of Yonkers, Westchester County, entered, respectively, October 23, 2008 (Thomas R. Daly, J.), December 4, 2008 (Michael A. Martinelli, J.), and March 27, 2009 (Robert C. Cerrato, J.). The final judgment, entered on consent, awarded landlord possession in a holdover summary proceeding. The order entered December 4, 2008 denied tenant's motion to vacate the final judgment and warrant of eviction. The order entered March 27, 2009 granted landlord's application to vacate a stay of the final judgment and warrant.

ORDERED that the appeals from the final judgment and from the order entered March 27, 2009 are dismissed; and it is further,

ORDERED that the order entered December 4, 2008 is affirmed without costs.

After a final judgment in this holdover proceeding was entered on October 23, 2008, tenant moved to vacate the final judgment and warrant of eviction, which motion was denied by order entered December 4, 2008. The lease between the parties expired on March 1, 2009. Thereafter, by order entered March 27, 2009, landlord's application to vacate a stay of the final judgment and warrant was granted. Tenant was evicted from the premises on June 25, 2009.

Contrary to tenant's contention, the record reflects that the final judgment was entered on consent. No appeal lies from a judgment entered on the consent of the parties (see CPLR 5511; [*2]Lefkowitz v Lefkowitz, 276 AD2d 598 [2000]; see also M.H. Kane Constr. v Byrd, 284 AD2d 509 [2001]). Accordingly, the appeal from the final judgment is dismissed.

Tenant's motion to vacate the final judgment and warrant of eviction was based upon, among other things, tenant's allegations that service of the predicate notice and of the petition and notice of petition was improper. However, by virtue of his having consented to the entry of the final judgment, tenant waived any arguably meritorious defenses with respect to service of the predicate notice and of the petition and notice of petition (see 2380-86 Grand Ave. Assoc., LLC v Ortega, 20 Misc 3d 135[A], 2008 NY Slip Op 51511[U] [App Term, 1st Dept 2008]; Rivercross Tenants' Corp. v Tsao, 2 Misc 3d 137[A], 2004 NY Slip Op 50254[U] [App Term, 1st Dept 2004]). Accordingly, the City Court's order entered December 4, 2008, which denied tenant's motion to vacate the final judgment and warrant of eviction, is affirmed.

With respect to the appeal from the order entered March 27, 2009, which granted landlord's application to vacate a stay of the final judgment and warrant, as noted above, tenant was evicted from the subject premises on June 25, 2009, during the pendency of this appeal. The appeal from the order has therefore been rendered moot, as any determination of this court regarding this order will not affect the rights of the parties (see Makas v Russo, 237 AD2d 762 [1997]; Tamara Props. Inc. v 91 Charles St. Rest., Inc., 10 Misc 3d 137[A], 2005 NY Slip Op 52146[U] [App Term, 1st Dept 2005]). The circumstances present in this case do not warrant addressing the issues raised under an exception to the mootness doctrine (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]; Coleman v Ceraolo, 26 Misc 3d 131[A], 2010 NY Slip Op 50057[U] [App Term, 1st Dept 2010]). Accordingly, the appeal from the order entered March 27, 2009 is dismissed.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: May 21, 2010