Appeal from an order of the Civil Court of the City of New York, Kings County (John H. Stanley, J.), dated April 15, 2010, deemed from a final judgment of the same court entered April 15, 2010 (see CPLR 5520 [c]).
Kings Highway Realty Corp. v Riley
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: WESTON, J.P., RIOS and ALIOTTA, JJ
The final judgment, entered pursuant to the April 15, 2010 order, granting, following a hearing, landlord's motion for the entry of a final judgment, awarded landlord possession in a holdover summary proceeding.
ORDERED that the final judgment is reversed, without costs, the order granting landlord's motion for the entry of a final judgment is vacated, landlord's motion is denied, and the petition is dismissed.
In this holdover summary proceeding to recover possession of a rent-stabilized apartment, tenant entered into a stipulation in which she agreed, among other things, that landlord could restore the matter to the calendar for the entry of a final judgment if tenant violated the terms of the stipulation. Following a hearing, the Civil Court granted a motion by landlord for the entry of a final judgment. On appeal, tenant argues, among other things, that the final judgment should be reversed and the petition dismissed based on landlord's undisputed failure to serve a notice of termination.
As landlord did not serve a notice terminating the tenancy, there was no basis for this holdover proceeding (RPAPL 711 ; see 89-09 Sutphin Corp. v Scarinzi, 187 Misc 536 [App Term, 2d Dept 1946]; cf. Dass-Gonzalez v Peterson, 258 AD2d 298 ). Tenant's inadvertent and unknowing waiver of this fundamental defect in landlord's case cannot be given effect (see Baumeister v Casieri, 32 Misc 2d 654 [App Term, 1st Dept 1961]), particularly in view of the provisions of the Rent Stabilization Code (RSC) requiring that no tenant be removed unless the landlord shall have given the tenant a written termination notice (RSC [9 NYCRR] § 2524.2 [a]) and that an "agreement by the tenant to waive the benefit of any provision of . . . this Code is void" (RSC [9 NYCRR] § 2520.13). Accordingly, the final judgment is reversed, the order granting landlord's motion for the entry of a final judgment is vacated, landlord's motion is denied and, pursuant to CPLR 409 (b), the petition is dismissed.
Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: April 02, 2012
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