Kimball Ave. Assoc., LLC v Walsh

[*1] Kimball Ave. Assoc., LLC v Walsh 2014 NY Slip Op 50660(U) Decided on April 14, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 14, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and TOLBERT, JJ
2012-1683 W C.

Kimball Avenue Associates, LLC, Respondent,

against

Richard Walsh, Appellant.

Appeal from a final judgment of the City Court of Yonkers, Westchester County (Thomas R. Daly, J.), entered September 19, 2012. The final judgment, entered upon a decision of the same court dated July 16, 2012, after a nonjury trial, awarded landlord possession and the principal sum of $1,225.90.

ORDERED that, on the court's own motion, the notice of appeal from the decision dated July 16, 2012 is deemed a premature notice of appeal from the final judgment entered September 19, 2012 (see CPLR 5520 [c]); and it is further,

ORDERED that the final judgment is reversed, without costs, and the petition is dismissed.

Landlord commenced this nonpayment proceeding against Kerri McHale, the tenant of record of the subject apartment. Subsequently, Richard Walsh was permitted to appear as a respondent, as it was undisputed that he resided in the subject apartment. Ms. McHale did not appear in the proceeding, and it was stipulated that Richard Walsh (occupant) was the sole respondent. After a nonjury trial at which occupant raised the defense of payment, the City Court found that occupant owed a balance of $1,225.90. A final judgment was entered against occupant, awarding landlord possession and the principal sum of $1,225.90.

A nonpayment proceeding will lie only where there exists a conventional relationship of landlord and tenant, and there has been a default "pursuant to the agreement under which the premises are held" (RPAPL 711 [2]; see Strand Hill Assoc. v Gassenbauer, 41 Misc 3d 53 [App Term, 2d, 11th & 13th Jud Dists 2013]; 615 Nostrand Ave. Corp. v Roach, 15 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2006]). In a prior nonpayment proceeding, landlord agreed, on the record, to make occupant the sole tenant of record and to prepare a lease for him. On appeal in this proceeding, despite the undisputed fact that landlord has not entered into such a lease with occupant, landlord argues that occupant is the tenant of record and the only tenant in the subject apartment, and that occupant should be estopped from arguing that he is not the legal tenant. Under the circumstances, absent proof that there was a lease in effect between landlord and occupant during the time period at issue, a nonpayment proceeding does not lie against occupant (see Strand Hill Assoc., 41 Misc 3d 53, 54-55).

Accordingly, the final judgment is reversed and the petition is dismissed.

Iannacci, J.P., Marano and Tolbert, JJ., concur.
Decision Date: April 14, 2014