| 49 Terrace Corp. v Richardson |
| 2013 NY Slip Op 51306(U) [40 Misc 3d 135(A)] |
| Decided on August 9, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Respondent Curtis Richardson appeals from a final judgment of the Civil Court of
the City of New York, New York County (David J. Kaplan, J.), entered June 13, 2012,
after a nonjury trial, which awarded landlord possession and a recovery of use and
occupancy in a holdover summary proceeding. The appeal brings up for review an order
of the same court (John H. Stanley, J.), dated March 13, 2012, which granted petitioner's
motion to strike the answer.
Per Curiam.
Final judgment (David J. Kaplan, J.), entered June 13, 2012, reversed, without costs, answer and counterclaims reinstated, and matter remanded to Civil Court for further proceedings on the holdover petition.
The March 13, 2012 nonfinal order (Stanley, J.) striking respondent-appellant's answer necessarily affected the subsequent final judgment and thus is reviewable, because dismissal of the succession defense asserted in the answer "necessarily removed that legal issue from the case (i.e., there was no further opportunity during the litigation to raise the question decided by the prior [nonfinal] order)" (Siegmund Strauss, Inc. v East 149th Realty Corp. 20 NY3d 37, 43 [2012]).
Turning to the merits, the answer should not have been stricken, since the so-ordered stipulation directing appellant to pay interim use and occupancy "without prejudice," and adjourning the matter to a specified date, did not authorize the drastic remedy of striking the answer in the event of a payment default by tenant. Even were the rent deposit provisions of RPAPL 745(2) applicable to this fact pattern, appellant's payment default warranted, at most, an "immediate trial" (RPAPL 745[2][c][ii]), since he made at least one of the use and occupancy payments called for in the stipulation before defaulting (see La Fabrique Owners Corp. v La Fabrique LLC, 16 Misc 3d 130[A], 2007 NY Slip Op 51335[U][App Term, 1st Dept 2007]). In this posture, there was no basis, statutory or otherwise, to strike appellant's answer.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 09, 2013