Carney Realty Corp. v Elite Tent & Party Rental

[*1] Carney Realty Corp. v Elite Tent & Party Rental 2021 NY Slip Op 51197(U) Decided on December 9, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TERRY JANE RUDERMAN, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ
2020-842 N C

Carney Realty Corp., Respondent,

against

Elite Tent and Party Rental, Appellant.

Rosenthal, Curry & Kranz, LLP (Edward M. Rosenthal and Patrick W. Curry of counsel), for appellant. Law Office of Judah Z. Cohen, PLLC (Judah Z. Cohen of counsel), for respondent.

Appeal from a judgment of the City Court of Glen Cove, Nassau County (Richard J. McCord, J.), entered May 8, 2020. The judgment, after a nonjury trial, awarded landlord the principal sum of $38,789.42 in a nonpayment summary proceeding.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the City Court for further proceedings.

Landlord commenced this commercial nonpayment proceeding in November 2019. Tenant answered and interposed various counterclaims. Before the start of a nonjury trial, tenant, on the record, surrendered possession of the premises and returned the keys to landlord's agent. In a decision dated May 8, 2020, the City Court specified that it found "the issue of possession resolved" and awarded landlord $38,789.42, which included an abatement based upon tenant's counterclaims. A "monetary judgment," dated May 8, 2020, was entered in landlord's favor in the principal sum of $38,789.42.

On appeal, tenant argues that it is entitled to a complete abatement due to landlord's actions. However, we do not reach the merits of tenant's contention, as the "money judgment" was improperly entered, and cannot stand, as there was no concomitant award of possession to landlord (see Fieldbridge Assoc., LLC v Sanders, 70 Misc 3d 140[A], 2021 NY Slip Op 50128[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Patchogue Assoc. v Sears, Roebuck & Co., 37 Misc 3d 1 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; 615 Nostrand Ave. Corp. v Roach, 15 Misc 3d 1 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

Accordingly, the judgment is reversed and the matter is remitted to the City Court for further proceedings.

RUDERMAN, P.J., EMERSON and DRISCOLL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 9, 2021