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Barrett Japaning, Inc. v. Bialobroda

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 8, 2009

BARRETT JAPANING, INC., PLAINTIFF-RESPONDENT,
v.
ANNA BIALOBRODA, DEFENDANT-APPELLANT, SEBASTIEN KLOTZ, ET AL., DEFENDANTS.

Judgment, Supreme Court, New York County (Marylin G. Diamond, J.), entered June 6, 2008, to the extent appealed from, enjoining defendant Bialobroda from having persons unrelated to her (other than one roommate) occupy the fifth floor apartment and directing all but one of the co-residents to vacate the premises, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered March 27, 2008, to the extent that order granted plaintiff's motion for summary injunctive relief, unanimously dismissed, without costs, as subsumed in appeal from judgment. Appeal from order, same court and Justice, entered October 30, 2006, to the extent it dismissed Bialobroda's seventh and eight counterclaims, unanimously dismissed, without costs, as untimely taken.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Nardelli, Renwick, Freedman, Roman, JJ.

102165/06

Regardless of whether or not the building is covered by the Multiple Dwelling Law, the so-called roommate law (Real Property Law § 235-f[3]) permits only one occupant in the subject apartment in addition to the lawful tenant and family. While this statute was not intended to provide a remedy for landlords (see Capital Holding Co. v Stravrolakes, 242 AD2d 240, 243 [1997], affd 92 NY2d 1009 [1998]), the landlord may enforce a lease clause where, as here, it is consistent with the statute (see Roxborough Apts. Corp. v Becker, 296 AD2d 358 [2002]). There was no evidence that Bialobroda and her roommates constituted a nontraditional "family" with a long-term relationship, and characterized by emotional and financial commitment and interdependence (see Braschi v Stahl Assoc. Co., 74 NY2d 201, 211 [1989]).

Bialobroda's appeal from the 2008 judgment does not bring up for review the 2006 order, since she seeks to challenge only so much of that order as dismissed her seventh and eighth counterclaims. An appeal from a judgment encompasses any non-final determination that necessarily affects the judgment (CPLR 5501[a][1]; see Siegel, NY Prac § 530, at 910 [4th ed]; 12 Weinstein-Korn-Miller, NY Civ Prac ¶ 5501.03 [2d ed]). The judgment dealt solely with Bialobroda's roommate claims, and was not affected by the 2006 ruling dismissing -- with finality (see Burke v Crosson, 85 NY2d 10, 16 [1995]) -- her counterclaims for breach of warranty of habitability and discrimination.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091208

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