Tzifil Realty Corp. v Temammee

[*1] Tzifil Realty Corp. v Temammee 2015 NY Slip Op 51787(U) Decided on December 2, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-1150 K C

Tzifil Realty Corp., Appellant,

against

David Temammee, Respondent, -and- Meital Levi, Tenant.

Appeal, on the ground of inadequacy, from a final judgment of the Civil Court of the City of New York, Kings County (Gary F. Marton, J.), entered September 27, 2013, and from an order of the same court dated November 8, 2013. The final judgment, after a nonjury trial, awarded landlord the principal sum of $925 in a nonpayment summary proceeding. The order permanently stayed the execution of the warrant of eviction. The appeal from the final judgment brings up for review so much of an order of the same court (Marcia J. Sikowitz, J.) dated May 17, 2013 as granted the branch of a motion by tenant David Temammee seeking, in effect, to vacate the portion of a prior default final judgment that awarded landlord possession and arrears of $2,811.65 as against him (see CPLR 5501 [a] [1]).

ORDERED that the final judgment is affirmed, without costs; and it is further,

ORDERED that the so much of the appeal as is from the order entered November 8, 2013 is dismissed as academic.

In February 2013, landlord commenced this nonpayment proceeding against the rent-stabilized tenants to recover unpaid rent and use and occupancy for the months of November and December 2012, and January 2013. Tenants failed to appear or answer, and a default final judgment was entered against them on March 21, 2013, awarding landlord possession and arrears of $2,811.65. Thereafter, David Temammee (tenant) moved, in effect, to vacate so much of the prior default final judgment as awarded landlord possession and arrears of $2,811.65 as against him, and to dismiss the petition or, in the alternative, for leave to file a late answer. The Civil Court, by order dated May 17, 2013, implicitly granted the branches of tenant's motion seeking, in effect, to vacate so much of the default final judgment as was against him and for leave to file a late answer.

Following a nonjury trial, at which landlord sought to recover unpaid rent and use and occupancy for the months of November 2012 through September 2013, the Civil Court awarded landlord only $925 for November 2012 rent, holding that, after the expiration of the lease, "no [*2]showing was made that would permit this court to find that a month-to-month or other type of tenancy, either express or implied, came into existence." Thereafter, tenant moved to compel landlord to accept his payment of the $925 judgment, which landlord had rejected as untimely. The Civil Court, by order dated November 8, 2013, granted tenant's motion to the extent of permanently staying the execution of the warrant of eviction. Landlord appeals from the September 27, 2013 final judgment and the order dated November 8, 2013.

At the oral argument of this appeal, landlord's attorney conceded that, in a separate Civil Court action, landlord had recovered a judgment for 15 months' rent commencing with the month of December 2012. Counsel further stated that tenant has now surrendered possession. As landlord has obtained a judgment for the months in question on this appeal and as possession is no longer in issue, we find no basis to disturb the Civil Court's final judgment. In addition, as possession has been surrendered, the issue raised with respect to the stay of execution of the warrant has been rendered moot.

Accordingly, the final judgment is affirmed and so much of the appeal as is from the order dated November 8, 2013 is dismissed as academic.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: December 02, 2015