[*1]
800 Ocean Ave., Inc. v Juarez
2013 NY Slip Op 50858(U) [39 Misc 3d 147(A)]
Decided on May 14, 2013
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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2012-653 K C.

800 Ocean Avenue, Inc., Appellant, —

against

Jose Juarez and Byron Juarez, Tenants. JERALD MILLER, Nonparty-Respondent.


Appeal from an order of the Civil Court of the City of New York, Kings County (Sheldon J. Halprin, J.), dated February 17, 2012. The order, insofar as appealed from, granted the branch of a motion by occupant Jerald Miller seeking, in effect, to permanently stay the execution of a warrant in a nonpayment summary proceeding.


ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Since occupant Jerald Miller established that he is in possession of the subject apartment and that landlord was aware of his presence in the apartment and did not make him a party to this proceeding, the Civil Court properly granted the branch of occupant's motion seeking, in effect, to permanently stay the execution of the warrant (see Fults v Munro, 202 NY 34, 43 [1911]; 170 W. 85th St. Tenants Assn. v Cruz, 173 AD2d 338, 340 [1991]; 2 Robert F. Dolan, Rasch's [*2]Landlord and Tenant — Summary Proceedings § 38:30 at 595-596 [4th ed 1998]).

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2013