New York Supreme and/or Appellate Courts Appellate Term, Second Department
April 2, 2012
JENNIFER STADT, RESPONDENT-APPELLANT,
TIMOTHY DURKIN AND ANDREA DURKIN, APPELLANTS-RESPONDENTS.
Appeals, and cross appeals on the ground of inadequacy, from (1) a decision of the Justice Court of the Town of Stony Point, Rockland County (William F. Franks, J.), dated October 7, 2010, and (2) a final judgment of the same court entered October 18, 2010, and appeal from a warrant issued by the same court on October 18, 2010.
Stadt v Durkin
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 2, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ
The final judgment, after a non-jury trial, awarded landlord possession and the sum of $13,438.29 in a holdover summary proceeding.
ORDERED that the appeal and cross appeal from the decision are dismissed as no appeal lies from a decision (UJCA 1702; see Greenfield v Tassinari, 8 AD3d 529 ); and it is further, ORDERED that the final judgment is affirmed, without costs; and it is further, ORDERED that so much of the appeal as is from the warrant is dismissed on the ground that no appeal lies therefrom (see Corrado v Harris, 13 Misc 3d 4 [App Term, 9th & 10th Jud Dists 2006]).
Landlord commenced this holdover summary proceeding to recover possession of the subject property, rental arrears for the months of June and July 2010, and future rents through the end of the lease term. At a non-jury trial, evidence was adduced that the parties had entered into a two-year lease on May 15, 2009. In July 2009, a foreclosure action was commenced against the subject property, but it was uncontroverted that landlord was still the owner of the property as of the date of trial. After trial, landlord was granted a final judgment awarding her possession and the sum of $13,438.29, and a warrant of eviction issued.
On appeal, tenants contend, among other things, that the lease did not provide for the termination of their tenancy based on the nonpayment of rent; that landlord was not entitled to recover arrears, based on the doctrine of equitable estoppel, misrepresentation, breach of the warranty of habitability, and unjust enrichment; and that they are due a $14,000 setoff against any arrears. Landlord cross-appeals, contending that the Justice Court improperly failed to award her use and occupancy at the rate set forth in the lease rider.
Paragraph 19 of the lease delineates what constitutes a default thereunder which can result in the termination of the lease. Subsection (a) of paragraph 19 permits landlord to consider tenants' failure to pay rent on time as a default under the lease. If landlord chooses to consider such nonpayment a default, she must provide tenants with 10 days' written notice to correct the default. Pursuant to subsection (b), if tenants fail to correct the previously noticed default, landlord may cancel the lease by providing tenants with a written three-day notice. We note that paragraph 48 of the lease rider, which provides that landlord can recover late fees as additional rent, is not inconsistent with the provisions of paragraph 19 of the lease.
In Goldcrest Realty Co. v 61 Bronx Riv. Rd. Owners, Inc. (83 AD3d 129, 134 ), the Appellate Division, Second Department, held that a conditional limitation in a residential lease providing for the forfeiture of tenancy upon the nonpayment of rent is not void as against public policy (but cf. 61 East 72nd Street Corp. v Zimberg, 161 AD2d 542 [1st Dept 1990]; 205 W. End Ave. Owners Corp. v Adler, NYLJ, Nov 2, 1990, at 21, col 4 [App Term, 1st Dept]; but cf. also Park Summit Realty Corp. v Frank, 107 Misc 2d 318 [App Term, 1st Dept 1980], affd 84 AD2d 2d 700 , affd 56 NY2d 1025 ). In the case at bar, tenants failed to timely pay rent for June and July 2010, and failed to cure their default within 10 days of landlord's service upon them of a July 7, 2010 notice to cure. Consequently, by notice dated July 23, 2010, landlord terminated the lease pursuant to the terms of paragraph 19, as was her right.
In view of the arguments made by tenants' counsel during counsel's trial summation, tenants' contention on appeal that landlord is not entitled to recover arrears based on the doctrine of equitable estoppel is limited to the argument that landlord is estopped due to her breach of the "covenant of quiet enjoyment," and tenants' claim of misrepresentation is limited to landlord's failure to inform tenants of the existence of the foreclosure proceeding. We find that these contentions lack merit. Moreover, tenants' breach of the warranty of habitability and unjust enrichment contentions, having been raised for the first time on appeal, are unpreserved for appellate review (see Lerman v Medical Assoc. of Woodhull, 160 AD2d 838 ). We do not pass on tenants' contention on appeal that they are entitled to a setoff, as it was not raised in the argument put forward at trial. Tenants' remaining contentions lack merit.
With respect to landlord's cross appeal, we note that, in his October 18, 2010 letter to the Justice Court, landlord's attorney requested that landlord be awarded the sum of $13,438.29, which sum landlord received. Landlord, having been granted her specific request, cannot now, on appeal, complain that the sum awarded pursuant to her request was insufficient.
Accordingly, the final judgment is affirmed.
Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: April 02, 2012
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