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Milio Sons, Inc v. Jameel U. Begum

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


November 26, 2012

MILIO SONS, INC.,
RESPONDENT,
v.
JAMEEL U. BEGUM,
APPELLANT.

Appeal from a final judgment of the City Court of Yonkers, Westchester County (Thomas R. Daly, J.), entered February 1, 2011.

Milio Sons, Inc. v Begum

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2012

PRESENT: NICOLAI, P.J., IANNACCI and LaSALLE, JJ

Nov 26, 2012

The final judgment awarded landlord possession, arrears of $1,080 and attorney's fees of $205, plus costs, in a nonpayment summary proceeding.

ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the City Court for a trial.

In this nonpayment proceeding, the petition seeks rent arrears through September 2010 and late fees, for a total of $1,420.32, plus attorney's fees of $205. On the September 27, 2010 return date of the petition, tenant failed to appear and landlord was awarded a final judgment for possession, arrears of $1,420.32, attorney's fees of $205, and costs. Thereafter, tenant moved to vacate the default final judgment. On January 21, 2011, the City Court granted tenant's motion, vacated the prior default final judgment, allowed landlord to amend the petition to include rent through January 2011 and awarded landlord a new final judgment for possession, arrears of $1,080, attorney's fees of $205, and costs. A final judgment was entered on February 1, 2011 pursuant to the January 21, 2011 decision.

As no record was made of the January 21, 2011 proceedings, there is nothing in the record before this court which supports the entry of the final judgment. It is noted that the record does not contain a copy of the lease or otherwise establish that landlord is entitled to recover attorney's fees as additional rent (see Peekskill Hous. Auth. v Quaintance, 20 Misc 3d 57 [App Term, 9th & 10th Jud Dists 2008]). Accordingly, the final judgment must be reversed and the matter remitted to the City Court for a trial.

Nicolai, P.J., Iannacci and LaSalle, JJ., concur.

Decision Date: November 26, 2012

20121126

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