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Homewood Gardens Estates, LLC, Respondent v. Dena Kirby

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


August 7, 2012

HOMEWOOD GARDENS ESTATES, LLC, RESPONDENT,
v.
DENA KIRBY, APPELLANT.

Appeals from (1) an order of the Civil Court of the City of New York, Kings County (George Michael Heymann, J.), entered January 6, 2011, deemed from a final judgment of the same court entered January 7, 2011 (see CPLR 5512 [a]), and (2) an order of the same court entered February 17, 2011.

Homewood Gardens Estates, LLC v Kirby

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 7, 2012

PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ

The final judgment, entered pursuant to the January 6, 2011 order granting landlord's motion for the entry of a final judgment, awarded landlord possession in a holdover summary proceeding. The order entered February 17, 2011 denied tenant's motion for leave to reargue and/or renew her opposition to the prior motion, or, in the alternative, for post-judgment relief.

ORDERED that, on the court's own motion, the appeals are consolidated for the purposes of disposition; and it is further,

ORDERED that the final judgment is reversed, without costs, the order entered January 6, 2011 is vacated and the matter is remitted to the Civil Court for a new determination of landlord's motion following a hearing; and it is further,

ORDERED that so much of the appeal from the order entered February 17, 2011 as is from the portion of that order that denied the branch of tenant's motion seeking leave to reargue is dismissed on the ground that no appeal lies from a denial of reargument; and it is further,

ORDERED that the appeal from so much of the order entered February 17, 2011 as denied the branches of tenant's motion seeking leave to renew or, in the alternative, post-judgment relief is dismissed as moot.

In this chronic-nonpayment holdover proceeding, the parties entered into a probationary stipulation settling the proceeding. Thereafter, landlord moved for the entry of a final judgment in its favor, alleging that tenant had defaulted under the terms of the stipulation. Following argument, at which no sworn testimony was taken and no exhibits were properly admitted into evidence, the Civil Court found, based on four post-marked envelopes apparently shown to the court by landlord's attorney, that tenant had defaulted under the stipulation on four occasions. Tenant's attorney objected to the court's failure to hold a proper hearing, and argues on appeal that the envelopes were not properly admitted into evidence and, in any event, were not all probative of late payments, as some were for prepayments.

Tenant's opposition to landlord's motion for the entry of judgment raised triable issues as to the number of tenant's defaults and whether they should be excused as de minimis (see 2246 Holding Corp. v Nolasco, 52 AD3d 377 [2008]; Sirul Realty Corp. v Silverstein, 35 Misc 3d 129[A], 2012 NY Slip Op 50633[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; 361 W. 121st Hous. Dev. Fund Corp. v Frazier, 26 Misc 3d 46 [App Term, 1st Dept 2009]). In the circumstances presented, it was error for the Civil Court to determine landlord's motion without taking sworn testimony or receiving evidence in admissible form (see Matter of Gelrod v Levine, 24 AD2d 756 [1965]; Mondrow v Dexter Props., LLC, 34 Misc 3d 131[A], 2011 NY Slip Op 52346[U] [App Term, 1st Dept 2011]). Accordingly, the final judgment is reversed, the order granting landlord's motion for the entry of a final judgment is vacated, and the matter is remitted to the Civil Court for a new determination of landlord's motion following a hearing.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: August 07, 2012

20120807

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