Gillen v Johansen

[*1] Gillen v Johansen 2010 NY Slip Op 51726(U) [29 Misc 3d 127(A)] Decided on October 1, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and IANNACCI, JJ
2009-1085 S C.

Thomas J. Gillen, Trustee The Gillen Living Trust, Appellant-Respondent,

against

Ronald Johansen, Tenant, LINDA JOHANSEN, LKE FAMILY LIMITED PARTNERSHIP, NORSK REALTY SERVICES, INC. LIN-JO CONTRACTING, INC. and LIN JO CONTRACTING, INC., Respondents-Appellants, -and- KRISTIN JOHANSEN, Respondent.

Appeal and cross appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated April 1, 2009. The order granted a motion by occupant Kristin Johansen to vacate so much of a final judgment as was against her and failed to dispose of motions by Linda Johansen and LKE Family Limited Partnership, Norsk Realty Services, Inc., Lin-Jo Contracting, Inc. and Lin Jo Contracting, Inc. to vacate so much of the final judgment as was against them.

ORDERED that the order, insofar as appealed from by landlord, is affirmed without costs; and it is further,

ORDERED that the cross appeal is dismissed as abandoned. [*2]

Landlord commenced this nonpayment proceeding to recover unpaid rent for the period from April 2005 through August 2006. Following a nonjury trial, the District Court entered a final judgment dismissing the petition in September 2007. Landlord appealed from the final judgment, and, by order dated November 19, 2008, this court reversed the final judgment and directed the entry of a final judgment awarding landlord possession, the principal sum of $53,653, and prejudgment interest (21 Misc 3d 140[A], 2008 NY Slip Op 52362[U]). Notwithstanding the terms of this court's order, a final judgment was entered on December 16, 2008 which granted landlord only a monetary award, in the total sum of $60,145.77.

In January 2009, by separate orders to show cause, occupant Kristin Johansen, Linda Johansen, and LKE Family Limited Partnership, Norsk Realty Services, Inc., Lin-Jo Contracting, Inc. and Lin Jo Contracting, Inc. moved to vacate so much of the final judgment as was against them. In her motion, Kristin Johansen argued, among other things, that she had not personally been served with the petition, that she had never appeared in the proceeding, and that she was not a tenant liable for rent. By order dated April 1, 2009, the District Court granted occupant Kristin Johansen's motion, finding that, "[a]t the trial of this matter, this court did not find sufficient facts to authorize entry of a judgment against Kristin Johansen . . . The record presented is devoid of any evidence that petitioner entered into a landlord/tenant relationship with the daughter Kristin. The record does support a finding that Kristin's occupancy arose by virtue of a license granted to her by her parents . . . This Court did not hold that a monthly tenancy was established between petitioner and Kristin Johansen so as to warrant entry of a money judgment against her." The court did not address the other motions. The instant appeal by landlord and cross appeal by Linda Johansen, LKE Family Limited Partnership, Norsk Realty Services, Inc., Lin-Jo Contracting, Inc. and Lin Jo Contracting, Inc. ensued.

The record supports the determination of the District Court that occupant Kristin Johansen was not a tenant liable for rent. The facts adduced at trial showed that occupant was not a party to the initial rental agreement entered into in 2000, that she did not move into the premises until four years after the tenancy had commenced and that she did not pay rent. Thus, no landlord-tenant relationship was ever created between her and landlord. Accordingly, the order, insofar as appealed from by landlord, is affirmed (see Washington v Palanzo, 192 Misc 2d 577 [App Term, 9th & 10th Jud Dists 2002]).

The cross appeal from the April 1, 2009 order is dismissed as abandoned (see Sirma v Beach, 59 AD3d 611 [2009]) as no brief has been submitted in support of the cross appeal by Linda Johansen, LKE Family Limited Partnership, Norsk Realty Services, Inc., Lin-Jo Contracting, Inc. and Lin Jo Contracting, Inc., to the extent that they may be aggrieved by the order.

Nicolai, P.J., Tanenbaum and Iannacci, JJ., concur.
Decision Date: October 01, 2010