New York Supreme and/or Appellate Courts Appellate Term, First Department
August 18, 2011
CHELSEA 139, LLC, A LIMITED LIABILITY COMPANY, PETITIONER-LANDLORD-RESPONDENT,
STEPHEN SAUNDERS, RESPONDENT-TENANT-CROSS- APPELLANT, -AND- SANTOS GARCIA, RESPONDENT-APPELLANT, -AND- "JOHN DOE," RESPONDENT.
Chelsea 139, LLC v Saunders
Decided on August 18, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
Respondent Santos Garcia appeals from (1) an order of the Civil Court of the City of New York, New York County (Bruce E. Scheckowitz, J.), dated November 5, 2009, which granted landlord's motion to dismiss his affirmative defense of lack of personal jurisdiction, and for leave to conduct discovery and for use and occupancy in a holdover summary proceeding; (2) an order (same court and Judge), dated January 21, 2010, which denied respondent's motion to dismiss the petition on jurisdictional grounds; and (3) a final judgment (same court and Judge), entered August 12, 2010, which, upon a prior order granting landlord's motion for summary judgment, awarded landlord possession of the premises. Tenant cross-appeals from an order (same court, Arlene H. Hahn, J.), dated February 3, 2011, which denied his ex-parte application.
Final judgment (Bruce E. Scheckowitz, J.), entered August 12, 2010, affirmed, with $25 costs. Appeals from orders (Bruce E. Scheckowitz, J.), dated November 5, 2009 and January 21, 2010, respectively, dismissed, without costs, as subsumed in the appeal from the final judgment. Appeal from order (Arlene H. Hahn, J.), dated February 3, 2011, dismissed, without costs, as non-appealable (see Tejeda v Woodycrest Realty, LLC, 39 AD3d 210 ).
We agree with Civil Court that landlord established its prima facie entitlement to summary judgment of possession against tenant and appellant (see Branic Intl. Realty Corp. v Pitt, 30 Misc 3d 29, 30 ). Any occupancy rights appellant might have acquired were subordinate to the tenancy rights of tenant, whose tenancy was appropriately terminated by landlord (see 170 W. 85th St. Tenants Assn. v Cruz, 173 AD2d 338, 339 ; 611 W. 141st St. Tenants Assn. v Mirovich, 26 Misc 3d 145[A], 2010 NY Slip Op 50473[U] ).
In opposition to landlord's motion for summary judgment, appellant failed to raise a triable issue with respect to whether he was a "permanent tenant" entitled to the protections afforded by the Rent Stabilization Code (9 NYCRR § 2520.6[j]), because "no express or implied landlord-tenant relationship existed between" appellant and landlord (Branic Intl. Realty Corp. v Pitt, 30 Misc 3d at 30; cf. 240 W. 73rd St. LLC v Hess, NYLJ, July 9, 2001, at 20, col 3).
Moreover, appellant lacks standing to challenge whether tenant was properly served with process "since such claim is personal in nature and may only be raised by him" (Home Sav. of Am. v Gkanios, 233 AD2d 422, 423 ; see Matter of Defreestville Area Neighborhoods Assn., Inc. v Tazbir, 23 AD3d 70, 73 , lv denied 5 NY3d 711 ). Accordingly, landlord was entitled to a final judgment of possession.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: August 18, 2011
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