Adelphi Assoc., LLC v Toruno

[*1] Adelphi Assoc., LLC v Toruno 2015 NY Slip Op 50903(U) Decided on June 11, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2013-1604 K C

Adelphi Associates, LLC, Respondent,

against

Jacqueline Toruno, Appellant, -and- "JOHN DOE" and "JANE DOE," Undertenants.

Appeal from a decision of the Civil Court of the City of New York, Kings County (Bruce E. Scheckowitz, J.), dated November 7, 2010, and a final judgment of the same court entered November 7, 2010. The final judgment, entered pursuant to the November 7, 2010 decision, after a nonjury trial, awarded landlord possession in a summary proceeding pursuant to RPAPL 713 (7).

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (CCA 1702; see Greenfield v Tassinari, 8 AD3d 529 [2004]); and it is further,

ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.

In this RPAPL 713 (7) licensee proceeding, the Civil Court, following a nonjury trial, awarded landlord possession.

The petition and attached notice of termination allege that landlord, as licensor, terminated Jacqueline Toruno's (occupant's) license. However, the trial testimony established that occupant's father is the tenant of record. As landlord did not allege or prove that it had terminated occupant's father's rent-stabilized tenancy, or that he had surrendered his interest, as was required under the circumstances presented in order for landlord to obtain possession in a summary proceeding (see Valley Dream Hous. Co. v Lupo, 11 Misc 3d 130[A], 2006 NY Slip Op 50303[U] [App Term, 9th & 10th Jud Dists 2006]; see also 170 W. 85th St. Tenants Assn. v Cruz, 173 AD2d 338 [1991]), the petition should have been dismissed.

Accordingly, the final judgment is reversed and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: June 11, 2015