WM Realty, LLC v Weingarten

[*1] WM Realty, LLC v Weingarten 2016 NY Slip Op 50968(U) Decided on June 15, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2015-1481 K C

WM Realty, LLC, Respondent,

against

Ezriel Weingarten and GITTY WEINGARTEN, Appellants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Marina C. Mundy, J.), entered March 11, 2015. The order granted landlord's postjudgment motion for the entry of a money judgment in a holdover summary proceeding.

ORDERED that the order is reversed, without costs, and landlord's postjudgment motion for the entry of a money judgment is denied.

In this holdover summary proceeding, the parties entered into a two-attorney, so-ordered stipulation which provided for the entry of a final judgment of possession and the issuance of a warrant, with execution of the warrant stayed through January 31, 2015, and a waiver of rent arrears. In February 2015, landlord moved for the entry of a money judgment for arrears of $14,300, alleging that tenants had breached the terms of the stipulation by failing to move out by January 31, 2015. In opposition to the motion, tenants asserted that they had left the keys in landlord's mailbox at 1:50 a.m. on February 1, 2015. Tenants appeal from an order of the Civil Court which granted landlord's motion.

In our view, landlord's motion should have been denied, as, in the circumstances presented, the summary proceeding had terminated in accordance with the terms of the stipulation prior to the making of landlord's motion (see Henry v Almanacid, 13 Misc 3d 132[A], 2006 NY Slip Op 51878[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006], citing Teitelbaum Holdings v Gold, 48 NY2d 51, 56 [1974]; Johnson v Hunte, 8 Misc 3d 133[A], 2005 NY Slip Op 51160[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005] [the "entry of a second, money judgment . . . was improper, particularly in the absence of a stipulation provision providing for the entry of such a judgment in the event of tenant's breach. Landlord's remedy is a plenary action to recover the sums due"]).

Accordingly, the order is reversed and landlord's motion is denied.

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

Decision Date: June 15, 2016