Appeals by tenant from a final judgment of the Civil Court, Kings County (A. Alterman, J.), entered on April 25, 2002, awarding landlord possession and the sum of $6,500, and from an order (J. Rodriguez, J.), entered on January 16, 2002, denying her motion to dismiss the petition and granting that branch of landlord's cross motion to strike tenant's defenses.

Appeal from order unanimously dismissed.

Final judgment unanimously affirmed without costs.

The appeal from the intermediate order dated January 16, 2002, must be dismissed because the right of direct appeal therefrom terminated with the entry of the final judgment (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the final judgment (see CPLR 5501).

In this holdover proceeding, the petition alleged that the lease agreement commenced on July 1, 1995 and that the apartment is in a multiple dwelling and is not subject to rent regulation. It is alleged further that the term for which said premises were rented expired on April 30, 2001 pursuant to a 30-day notice and tenant has continued in possession of the premises without permission of the landlord.

Prior to trial, the tenant moved to dismiss the petition and the landlord cross-moved for summary judgment or, in the alternative, for an order striking tenant's defenses. It is undisputed that a former owner of the premises entered into a written lease with the tenant for a term of five years commencing in 1995 with a renewal option for three consecutive five year terms. Tenant asserted in her verified answer that she exercised her option to renew. The lease was not recorded and, in 1997, Greenpoint Savings Bank foreclosed upon the mortgage. Thereafter, in 1997, Neerg Second Corp. purchased the property at the foreclosure sale. On February 26, 1998, the petitioner purchased the premises from Neerg Second Corp. In the order appealed from, the court below [*2]found that the lease, which was for a term of five years, was a conveyance under the recording statute (Real Property Law § 291) and that it was void because the tenant did not record it. Moreover, the court found that the tenant's rights thereunder were extinguished by virtue of the foreclosure sale. Consequently, the court denied tenant's motion to dismiss the petition and granted that branch of landlord's motion to strike the defenses asserted in tenant's answer.

At trial, landlord established ownership of the premises, that the last payment he received for rent was in March 2001 and that he served a notice of termination upon the tenant.

Contrary to defendant's contentions, we find no basis to disturb the judgment of the court below. The record before the court on appeal established that landlord was a bona fide purchaser and that defendant failed to record said lease which was for a term greater than 3 years (Real Property Law § 291). Thus, the lease is unenforceable against landlord.

We further find defendant's remaining contentions to be without merit.
Decision Date: December 09, 2003