356-358 Sjp, LLC v Stewart

[*1] 356-358 Sjp, LLC v Stewart 2020 NY Slip Op 51000(U) Decided on August 28, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., BERNICE D. SIEGAL, WAVNY TOUSSAINT, JJ
2018-2176 K C

356-358 SJP, LLC, Respondent,

against

Dorothy Stewart, Tenant. Nicholas Stewart, Appellant.

The Legal Aid Society (Ishrat Ruhi of counsel), for appellant. Slochowsky & Slochowsky, LLP (Charles Loveless of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (David A. Harris, J.), entered September 6, 2018. The order denied a motion by occupant Nicholas Stewart to, among other things, vacate a final judgment of that court (Hannah Cohen, J.) entered May 4, 2018 pursuant to a so-ordered stipulation of settlement, awarding landlord possession and the sum of $6,021.75, in a nonpayment summary proceeding.

ORDERED that the appeal is dismissed, all proceedings taken in the Civil Court, including the final judgment entered May 4, 2018 and the order entered September 6, 2018, are vacated, and the petition is dismissed.

Inasmuch as the tenant of record, Dorothy Stewart, the only respondent named in the petition in this nonpayment proceeding, was deceased at the time the proceeding was commenced, the proceeding was a nullity from its inception (see Gorbaty v Brodsky, 142 AD3d 584 [2016]). This defect could not be cured by stipulating to amend the caption of the "void" petition to substitute occupant Nicholas Stewart for the deceased respondent (Krysa v Estate of Qyra, 136 AD3d 760, 761 [2016]; see U.S. Bank N.A. v Cadeumag, 147 AD3d 881 [2017]).

Accordingly, the appeal is dismissed, all proceedings taken in the Civil Court, including the final judgment entered May 4, 2018 and the order entered September 6, 2018, are vacated, and the petition is dismissed.

ALIOTTA, P.J., SIEGAL and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020