Appeals from (1) an order of the Civil Court of the City of New York, Kings County (Jose Rodriguez, J.), dated August 5, 2004, and (2) a decision after trial of said court (Marcia Sikowitz, J.), dated November 22, 2004, deemed an appeal from the final judgment entered on the same date (see CPLR 5520 [c]). The order denied tenant's motion to dismiss the nonpayment summary proceeding. The final judgment awarded landlord possession and the sum of $37,341.80.

Appeal from order dismissed.

Final judgment affirmed without costs.

The appeal from the intermediate order 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 [1976]). 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 [a] [1]).

In its August 5, 2004 order, the court properly rejected tenant's claim that the nonpayment summary proceeding could not lie because landlord's merger of several apartments into fewer, larger units violated the certificate of occupancy (Multiple Dwelling Law §§ 301, 302 [*2][1] [b]). "Technical Policy and Procedure Notice" number 3 of 1997 of the Department of Buildings "eliminate[d] the necessity of obtaining a Certificate of Occupancy where the alteration only consists of combining apartments to create larger residential units, resulting in the reduction of the total number of legal dwelling units in the building, and the bulk of the building is not being increased." Accordingly, we adhere to Judge Rodriguez' determination that "a valid certificate of occupancy does exist indicating compliance with vital and essential health and safety codes."

The trial court's conclusion that tenant's proof failed to rebut the certificate's validity finds adequate support in the record and will not be disturbed. Tenant's own witness, an employee of the Department of Buildings, acknowledged that the certificate remained valid pending the outcome of the Department of Buildings' review process, and that his opinion regarding the necessity of a new certificate of occupancy, which was not based on an inspection of the premises, amounted merely to his recommendation as to the ultimate disposition of the administrative determination.

We have considered tenant's remaining contention and find it to be without merit (e.g. Win Props. v Felder's Auto Sales & Serv., 245 AD2d 444 [1997]; cf. CPLR 3025 [b]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: July 12, 2006