| 1764 Majors Path Corp. v Petrinolis |
| 2016 NY Slip Op 50465(U) [51 Misc 3d 133(A)] [51 Misc 3d 133(A)] |
| Decided on March 7, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from a final judgment of the Justice Court of the Town of Southampton, Suffolk County (Edward D. Burke, J.), entered July 3, 2014. The final judgment, after a nonjury trial, awarded petitioner possession in a summary proceeding brought pursuant to RPAPL 713 (3). The appeal was transferred to this court nunc pro tunc by decision and order on motion of the Appellate Division, Second Judicial Department, dated August 1, 2014.
ORDERED that so much of the appeal as was taken by Mike Serikos and Benny Jones is dismissed; and it is further,
ORDERED that the final judgment, insofar as appealed from by Emmanuel Petrinolis, is reversed, without costs, and the matter is remitted to the Justice Court for a new trial on so much of the petition as is against Emmanuel Petrinolis.
Petitioner commenced this summary proceeding alleging that the three occupants were squatters (see RPAPL 713 [3]). A default final judgment was entered against all three occupants and then later vacated upon their motion. However, only Emmanuel Petrinolis (occupant) answered and appeared at the nonjury trial. Thus, so much of the appeal as was taken by occupants Mike Serikos and Benny Jones must be dismissed, as no appeal lies from a judgment entered upon the default of the appealing party (see CPLR 5511; Matter of Davy v Davy, 75 AD3d 506 [2010]).
At trial, the Justice Court, over occupant's objection, directed occupant to present his affirmative defenses—including that he was a tenant, not a squatter—without first requiring petitioner to present its case. After occupant rested, the court found that he had not proven his affirmative defenses, and a final judgment awarding petitioner possession was entered. It was error for the Justice Court to award petitioner a final judgment without requiring it to present sworn testimony establishing its cause of action (see Oakwood Terrace Hous. Corp. v Monk, 35 Misc 3d 149[A], 2012 NY Slip Op 51111[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]).
Accordingly, the final judgment, insofar as appealed from by Emmanuel Petrinolis, is reversed and the matter is remitted to the Justice Court for a new trial on so much of the petition as is against Emmanuel Petrinolis.
Marano, P.J., Tolbert and Garguilo, JJ., concur.