Appeals from (1) an order of the Civil Court of the City of New York, Kings County (George Michael Heymann, J.; op 27 Misc 3d 1206[A], 2010 NY Slip Op 50571[U]), entered April 7, 2010, (2) a final judgment of the same court entered April 7, 2010, (3) an order of the same court entered August 7, 2010, and (4) an order of the same court (Maria Milin, J.) entered August 8, 2011.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 15, 2013
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
The final judgment, entered pursuant to the April 7, 2010 order granting landlords' motion for summary judgment, awarded possession to landlords in a holdover summary proceeding. The order entered August 7, 2010 granted tenant's motion to stay the execution of the warrant only to the extent of staying the execution of the warrant through August 31, 2010. The order entered August 8, 2011 denied tenant's motion to vacate the final judgment and warrant.
ORDERED that the appeal from the order entered April 7, 2010 is dismissed on the ground that the right of direct appeal therefrom terminated with the entry of the final judgment (see Matter of Aho, 39 NY2d 241, 248 ); and it is further,
ORDERED that the final judgment and the order entered August 8, 2011 are affirmed, without costs; and it is further,
ORDERED that the appeal from the order entered August 7, 2010 is dismissed as abandoned.
In this holdover proceeding based on the termination of an alleged month-to-month tenancy, tenant, before answering, moved to dismiss on several grounds, including that the 30-day notice that she had received on February 25, 2009 was defective because it terminated the tenancy as of March 31, 2008; that service of the termination notice and of the petition and notice of petition was defective; and that the petition is defective because it alleges that the building is a multiple dwelling when, in fact, the building is a two-family house which is illegally being used as a four-family house. In an order dated July 14, 2009, the Civil Court (Eleanora Ofshtein, J.) rejected tenant's claim regarding the termination date in the notice of termination, noting that the termination date appeared to be March 31, 2009, not 2008 as claimed by tenant. Tenant's challenges to the service of the termination notice and the petition and notice of petition were overruled by orders of the Civil Court (Oymin Chin, J.), dated November 9, 2009, following separate traverse hearings. In the interim, tenant had served an answer, in which she alleged, among other things, that she was in possession pursuant to an oral agreement for a life estate, and that she was protected under rent stabilization because the building was part of a horizontal multiple dwelling and/or because landlords received certain government subsidies. The answer also contained a counterclaim seeking, among other things, damages for severe mental and emotional distress allegedly suffered by tenant as a result of landlords' fraud and misrepresentation in promising her an oral life estate in order to induce her to accept rent increases, a counterclaim which tenant subsequently withdrew.
Landlords moved for summary judgment, asserting that there were no triable issues, as tenant's challenges to service had been rejected following the traverse and there was no oral agreement for a life estate. In opposition to the motion, tenant reiterated her claim to an oral life estate, to which landlord replied that such an agreement would, in any event, be barred by the statute of frauds, a claim which tenant in turn disputed. By order entered April 7, 2010, the Civil Court (George Michael Heymann, J.) granted landlords' motion for summary judgment, ruling that tenant's alleged oral life estate violated the statute of frauds (op 27 Misc 3d 1206[A], 2010 NY Slip Op 50571[U]) and that tenant was a month-to-month tenant by operation of law, and severed tenant's remaining defenses and counterclaims. A final judgment was entered pursuant to the order, awarding possession to landlords. Tenant subsequently moved to vacate the final judgment and warrant on the ground that landlords' traverse exhibits were missing from the file. By order entered August 8, 2011, the Civil Court (Maria Milin, J.) denied tenant's motion.
In our view, tenant's motion to dismiss the petition was properly denied. Contrary to tenant's contention, the notice of termination that was served upon tenant was not defective, as an examination thereof reveals that it properly stated that the term would expire on March 31, 2009, not 2008. Moreover, the claimed defects in the manner in which the process server maintained his logbook do not render the service of the notice of termination invalid or undermine the process server's credibility (see Clearview 1719, LLC v Vega, 35 Misc 3d 148[A], 2012 NY Slip Op 51078[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Timur on Fifth Ave., Inc. v Jim, Jack & Joe Realty Corp., NYLJ, Oct. 19, 2000 [App Term, 1st Dept]). Contrary to tenant's further contention, the fact that the petition stated that the building is a multiple dwelling but omitted to state that it is a de facto multiple dwelling did not render the petition jurisdictionally defective (see C.H.T. Place, LLC v Rios, 36 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]), nor did it cause any prejudice to tenant, as landlords are seeking to recover only possession and are not seeking rent arrears (see Czerwinski v Hayes, 8 Misc 3d 89 [App Term, 2d & 11th Jud Dists 2005]). Tenant's contentions with respect to the adequacy of the service of the petition and notice of petition were waived by tenant's interposition of an unrelated counterclaim for damages for mental and emotional distress (see Textile Tech. Exch. v Davis, 81 NY2d 56 ). Contrary to what tenant argued in the Civil Court, such a counterclaim is not considered related to landlords' claim, within the meaning of this rule, as it would not be barred by principles of collateral estoppel if tenant had not asserted it in this proceeding (see id.), in particular because the Housing Part is not the proper forum for the assertion of a tort counterclaim (see Town Mgt. Co. v Leibowitz, 37 Misc 3d 49 [App Term, 2d, 11th & 13th Jud Dists 2012]; 374 E. Parkway Common Owners Corp. v Albernio, 32 Misc 3d 1240[A], 2011 NY Slip Op 51645[U] [Civ Ct, Kings County 2011]). Tenant's subsequent withdrawal of this counterclaim did not revive her objection to service (see ROL Realty Co. LLC v Gordon, 29 Misc 3d 139[A], 2010 NY Slip Op 52048[U] [App Term, 1st Dept 2010]).
We agree with the Civil Court that tenant's alleged oral life estate is barred by the statute of frauds (General Obligations Law § 5-703 ; see Lowinger v Lowinger, 287 AD2d 39, 44-45 ; Paladino v Sotille, 15 Misc 3d 60 [App Term, 9th & 10th Jud Dists 2007]). Contrary to tenant's contention, the alleged oral agreement is subject solely to the terms of General Obligations Law § 5-703, and is not subject to the terms of General Obligations Law § 5-701 (but see City of ...