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Fifty-Seven Associates, L.P v. Mitchell D. Feinman

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


March 2, 2011

FIFTY-SEVEN ASSOCIATES, L.P.,
PETITIONER-LANDLORD-RESPONDENT,
v.
MITCHELL D. FEINMAN,
RESPONDENT-TENANT-APPELLANT.

Tenant appeals from (1) an order of the Civil Court of the City of New York, New York County (Timmie Erin Elsner, J.),

Per curiam.

Fifty-Seven Assoc., L.P. v Feinman

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 This opinion is uncorrected and will not be published in the printed Official Reports. Decided on March 2, 2011

PRESENT: Schoenfeld, J.P., Shulman, Torres, JJ

dated February 2, 2009, which denied his motion to renew that branch of landlord's motion seeking to strike tenant's jury demand; (2) an order, same court and Judge, dated March 2, 2009, which denied tenant's motion to reargue a prior motion resulting in an order, among other things, granting landlord's motion to strike tenant's jury demand and denied a stay of the proceeding; (3) a final judgment, same court (Michelle D. Schreiber, J.), entered May 19, 2009, which, after a non-jury trial, awarded landlord possession and a recovery of rent arrears in the sum of $11,718.32; (4) an order, same court (Michelle D. Schreiber, J.), dated July 14, 2009, which denied tenant's motion to stay execution of the warrant of eviction; and (5) an order, same court (Michelle D. Schreiber, J.), dated September 30, 2009, which denied a post-trial motion for the appointment of a guardian ad litem on tenant's behalf in a nonpayment summary proceeding.

Final judgment (Michelle D. Schreiber, J.), entered May 19, 2009, affirmed, without costs. Appeals from orders (Timmie Erin Elsner, J.), dated February 2, 2009 and March 2, 2009, dismissed, without costs, as subsumed in the appeal from the final judgment (CPLR 5501[a][1]). Appeal from order (Michelle D. Schreiber, J.), dated July 14, 2009, dismissed, without costs, as academic. Appeal from order (Michelle D. Schreiber, J.), dated September 30, 2009, dismissed, without costs, as tenant was not aggrieved from that order (CPLR 5511).

Civil Court properly resolved the habitability issues litigated below in favor of landlord. The trial evidence, fairly interpreted, supports the court's determination that tenant failed to grant reasonable access to landlord (see Yorkville 82, LLC v Ruiz, 20 Misc 3d 128[A], 2008 NY Slip Op 51310[U] [2008]).

The trial court also properly concluded that tenant failed to establish his defense based on the Spiegel Act (Social Services Law § 143-b), since tenant failed to provide access to landlord to correct certain housing code violations and to make necessary repairs (see generally Matter of Notre Dame Leasing, LLC v Rosario, 2 NY3d 459 [2004]; 2326 Grand Assn. v Moran, 176 Misc 2d 787, 789 [1998]).

We have considered and rejected tenant's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur

Decision Date: March 02, 2011

20110302

© 1992-2011 VersusLaw Inc.



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