| Kew Gardens Ny, LLC v Isaac Perkin |
| Motion No: 2008-01383 QC |
| Slip Opinion No: 2009 NYSlipOp 60638(U) |
| Decided on January 9, 2009 |
| Appellate Term, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
| KEW GARDENS NY, LLC, Appellant, -against- ISAAC PERKIN, Respondent. |
DECISION
Motion by tenant-respondent to dismiss appeal granted.
Cross-motion by landlord-appellant for substitution denied as moot.
By accepting the benefit of the order appealed from, landlord waived its right to appeal from the order (see Williams v Hearburg, 245 AD2d 794 [1997]; HPS Holdings Co., LLC v Al & Assoc., LLC, 10 Misc 3d 135[A], 2005 NY Slip Op 52103[U] [App Term, 2d & 11th Jud Dists 2005]; Crystal Ridge Assoc. v Pascal, 2003 NY Slip Op 50669[U] [App Term, 2d & 11th Jud Dists 2003]; Wren Props. of Nassau v Taveras, NYLJ, Sept. 30, 1999 [App Term, 2d & 11th Jud Dists]; Indart v Ramirez, NYLJ, June 24, 1999 [App Term, 2d & 11th Jud Dists]; 1953 Faith Ave. Realty Corp. v Sanchez, NYLJ, Feb. 9, 1999 [App Term, 2d & 11th Jud Dists]). Moreover, in the circumstances presented, landlord's acceptance of tenant's rent payments, its offer of a renewal lease, its service of rent demands and its commencement of nonpayment proceedings evidenced the existence of a landlord-tenant relationship and vitiated the warrant (see e.g. 200 Eleventh Assoc. v Lamontagne, 14 Misc 3d 139[A], 2007 NY Slip Op 50323[U] [App Term, 1st Dept 2007]; McCormack [reported as McCoack] v Geidel, NYLJ, Nov. 22, 1978 [App Term, 2d & 11th Jud Dists]; Ansonia Assoc. v Pearlstein, 122 Misc 2d 566 [Civ Ct, NY County 1984]).
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Presiding Justice, Appellate Term
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Associate Justice, Appellate Term
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Associate Justice, Appellate Term