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Damon Fields, Appellant v. Michael Rohinsky and Aviva Rohinsky Also Known As

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


May 6, 2013

DAMON FIELDS, APPELLANT, --
v.
MICHAEL ROHINSKY AND AVIVA ROHINSKY ALSO KNOWN AS
AVIVA GREENBERG ALSO KNOWN AS AVIVA GREENBERG ROHINSKY, RESPONDENTS.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered October 5, 2011.

Fields v Rohinsky

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2013

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

The judgment, entered pursuant to a decision after inquest of the same court dated September 27, 2011, dismissed the complaint.

ORDERED that, on the court's own motion, the notice of appeal from the decision after inquest is deemed to be a premature notice of appeal from the judgment (see CPLR 5520 [c]); and it is further, ORDERED that the judgment is affirmed, without costs.

In this action to recover, among other things, rent arrears, an inquest was held after defendants had failed to appear or answer the complaint. During the course of the inquest, the Civil Court took judicial notice of a prior nonpayment proceeding that had been brought by plaintiff against tenants who occupied another apartment in the building in which defendants' apartment is located. That proceeding had been dismissed upon a determination that the premises were being used illegally as a de facto multiple dwelling. Based upon that determination, the court, following the inquest, dismissed the instant complaint.

"There is no mandatory ministerial duty to enter a default judgment against a defaulting party" (McGee v Dunn, 75 AD3d 624, 624 [2010] [internal quotation marks and citations omitted]). Instead, the court must determine whether the plaintiff has submitted to the court adequate proof to support a determination of liability, i.e.,"enough facts to enable [the] court to determine that a viable cause of action exists" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; see Beaton v Transit Facility Corp., 14 AD3d 637 [2005]). "[T]he legal conclusions to be drawn from such proof are reserved for the court's determination," and "[w]here a viable cause of action is not stated, the party moving for judgment is not entitled to the requested relief, even on default" (Green v Dolphy Constr. Co., 187 AD2d 635, 636 [1992]).

At the inquest, plaintiff did not dispute that the premises in question were being used illegally as a de facto multiple dwelling and, in fact, he admitted that the illegal status of the premises had yet to be corrected.

The owner or lessor of an apartment located on premises used as a de facto multiple dwelling who fails to obtain a proper certificate of occupancy or comply with the registration requirements of the Multiple Dwelling Law may not recover rent or use and occupancy (see Multiple Dwelling Law §§ 302 [1] [b]; 325 [2]; Sheila Properties, Inc. v A Real Good Plumber, Inc., 59 AD3d 424 [2009]; Caldwell v American Package Co., 57 AD3d 15 [2008]; Jalinos v Ramkalup, 255 AD2d 293 [1998]; Fields v Adelman, 35 Misc 3d 130[A], 2012 NY Slip Op 50634[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). As the evidence adduced at the inquest demonstrated that plaintiff did not have a viable cause of action (see Litvinskiy v May Entertainment Group, Inc., 44 AD3d 627 [2007]), we find that the record supports the Civil Court's determination.

Plaintiff's remaining arguments concern matters which are either dehors the record or without merit.

Accordingly, the judgment is affirmed.

Aliotta, J.P., Pesce and Rios, JJ., concur.

Decision Date: May 06, 2013

20130506

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