Barrett Japaning, Inc. v Bialobroda (2012 NY Slip Op 51549(U))

Barrett Japaning, Inc. v Bialobroda

2012 NY Slip Op 51549(U) [36 Misc 3d 144(A)]

Decided on August 16, 2012

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.

Barrett Japaning, Inc., Petitioner-Landlord- Respondent-Cross-Appellant, - -

against

Anna Bialobroda, Respondent-Tenant- Appellant-Cross-Respondent, - and - "John Doe" and "Jane Doe," Respondents-Undertenants.

Tenant appeals from (1) a final judgment of the Civil Court of the City of New York, New York County (Joseph E. Capella, J.), entered November 9, 2010, after a nonjury trial, which awarded possession to landlord in a holdover summary proceeding; (2) an order of the same court (Timmie Erin Elsner, J.), dated June 30, 2009, which granted landlord's cross motion to dismiss tenant's fourth, fifth, twelfth and seventeenth affirmative defenses; and (3) an order (same court and Judge), dated April 12, 2010, which dismissed tenant's fifteenth affirmative defense. Landlord cross-appeals from so much of the aforesaid final judgment as afforded tenant a postjudgment opportunity to cure pursuant to RPAPL 753(4).

Final judgment (Joseph E. Capella, J.), entered November 9, 2010, affirmed, without costs. Appeals from orders (Timmie Erin Elsner, J.), dated July 30, 2009 and April 12, 2010, dismissed, without costs, as subsumed in the appeal from the final judgment (see CPLR 5501[a][1]).

Giving due deference to the trial court's findings of fact and its assessment of the witnesses' credibility, we find no cause to disturb the court's determination that tenant "breached the parties proprietary lease by subleasing portions of the subject premises for [non-artist] residential use without [landlord's] consent." [*2]

Landlord's challenge to so much of the final judgment as afforded tenant an opportunity to cure pursuant to RPAPL § 753(4) is unavailing. Even assuming in landlord's favor that the January 9, 2009 order of Supreme Court (Marilyn G. Diamond, J.), in a related case involving these same parties, is not dispositive on the applicability of RPAPL § 753(4) in this proceeding, we agree that the statute was properly invoked in the circumstances here present, since it is undisputed that the loft premises here at issue was "occupied for dwelling purposes" (RPAPL § 753[4]).

We have considered and rejected the parties' remaining arguments and find them lacking in merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 16, 2012