Clinton Hill Lofts, LLC v Soleil

[*1] Clinton Hill Lofts, LLC v Soleil 2010 NY Slip Op 51052(U) [27 Misc 3d 142(A)] Decided on June 11, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2009-309 K C.

Clinton Hill Lofts, LLC, Respondent,

against

Andre Ramon Soleil, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Maria Ressos, J.), dated May 12, 2008, deemed from a final judgment of the same court entered August 18, 2008. The final judgment, entered pursuant to a stipulation of settlement, awarded landlord possession and the sum of $33,724 in a nonpayment summary proceeding. The appeal from the final judgment brings up for review the order dated May 12, 2008 which, among other things, denied a motion by tenant for, inter alia, an award of treble damages based on a claim of rent overcharge on an alleged rent-stabilized apartment, and granted so much of a cross motion by landlord as sought summary judgment dismissing tenant's defense of rent overcharge.

ORDERED that the final judgment is affirmed without costs.

In this nonpayment summary proceeding, tenant moved for, among other things, an award of treble damages based on a claim of rent overcharge on an alleged rent-stabilized apartment. Landlord cross-moved for summary judgment. By order dated May 12, 2008, the Civil Court denied tenant's motion and granted landlord's cross motion to the extent of dismissing tenant's defense of rent overcharge, finding that the apartment was not subject to rent stabilization. Tenant filed a notice of appeal from the order. Thereafter, on August 18, 2008, the parties entered into a stipulation of settlement which provided that landlord would have a final judgment awarding it possession and the sum of $33,724, and which preserved tenant's prior appeal from the May 12, 2008 order.

As a procedural matter, tenant's appeal from the May 12, 2008 order has been deemed to be from the final judgment (see CPLR 5520 [c]; Bragston Realty Corp. v Dixon, 180 Misc 2d 1018, 1020 [App Term, 2d & 11th Jud Dists 1999]) because no appeal lies from an intermediate order once a final judgment has been entered (Matter of Aho, 39 NY2d 241 [1976]) and because the only matter which could be brought up for review on the appeal from the final judgment is [*2]the contested May 12, 2008 order. Although the final judgment was entered pursuant to a stipulation, it remains appealable insofar as it brings up for review the propriety of the contested order, as the stipulation specifically provided for such appellate review (Messina v Lufthansa German Airlines, 64 AD2d 890 [1978], affd 47 NY2d 111 [1979]; Nayman v Remsen Apts., 125 AD2d 378, 382 [1986]; Bragston Realty Corp., 180 Misc 2d at 1020). The issues raised upon the appeal from the contested order have been considered on the appeal from the final judgment (CPLR 5501 [a] [1]).

In our view, the Civil Court properly found that the apartment was not subject to rent stabilization. Landlord offered undisputed evidence showing that the building was not substantially rehabilitated as family units until after January 1, 1974 (see Emergency Tenant Protection Act of 1974 § 5 [a] [5], as added by L 1974, ch 576, § 4) and that, although landlord had applied for a J-51 tax abatement for the premises, it had never received one (see e.g. Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-504 [c] [rent stabilization law applies to "(d)welling units in a building or structure receiving the benefits of section 11-243 or section 11-244"]; 28 RCNY § 5-03 [f] [1] ["In order to be eligible to receive tax benefits under the Act and for at least so long as a building is receiving the benefits of the Act . . . , all dwelling units in buildings or structures converted, altered or improved shall be subject to rent regulation . . ."]). As tenant raises no other issue on appeal, the final judgment is affirmed.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 11, 2010