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LaCarrubba v. Outdoors Clothing Corp.

Supreme Court of New York, Second Department

January 27, 2014

Joseph LaCarrubba and SALVATORE LaCARRUBBA, Respondents,
v.
Outdoors Clothing Corp., Appellant.

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

Appeal from a decision, final judgment and warrant of the Justice Court of the Town of East Hampton, Suffolk County (Catherine A. Cahill, J.), dated, entered and issued, respectively, May 25, 2012. The final judgment, entered upon tenant's failure to proceed at trial, awarded landlords possession in a summary proceeding.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see UJCA 1702; Greenfield v Tassinari, 8 A.D.3d 529 [2004]); and it is further,

ORDERED that the appeal from the warrant is dismissed, as no appeal lies from a warrant (see UJCA 1702; Corrado v Harris, 13 Misc.3d 4 [App Term, 2d & 11th Jud Dists 2006]); and it is further,

ORDERED that the appeal from the final judgment is dismissed (see CPLR 5511) except insofar as it brings up for review the denial of tenant's oral applications to dismiss the petition based upon a lack of personal jurisdiction and a failure to name a necessary party; and it is further,

ORDERED that the final judgment, insofar as reviewed, is affirmed, without costs.

Tenant's failure to participate in the trial of this summary proceeding on May 25, 2012 resulted in a final judgment of possession entered on default (see Feuerstein v Tirico, 13 Misc.3d 135 [A], 2006 NY Slip Op 52032[U] [App Term, 9th & 10th Jud Dists 2006]; see also Brown v Data Communications, 236 A.D.2d 499 [1997]), which is appealable only to the extent that tenant seeks review of matters which were "the subject of contest below" (James v Powell, 19 N.Y.2d 249, 256 n 3 [1967]; Brown, 236 A.D.2d 499). Tenant argues on appeal, among other things, that the Justice Court lacked personal jurisdiction over it and that the petition should have been dismissed for failure to name a necessary party. At the commencement of the trial on May 23, 2012, tenant moved to dismiss the petition on these two grounds, and the court denied tenant's applications. Accordingly, these matters were the subject of contest below, and are reviewable on this appeal (see Katz v Katz, 68 A.D.2d 536, 542 [1979]).

The affidavit of service states that the notice of petition and petition were delivered to tenant's store manager, who was authorized to accept service. On May 23, 2012, at the commencement of the trial, tenant's attorney submitted an affidavit from tenant's principal, who was not present in court on that date, stating that the store manager was not authorized to accept service on behalf of the corporation. Since tenant failed either to submit a written motion prior to the commencement of trial containing a sworn denial of service specifically rebutting the facts alleged in the process server's affidavit or to present a witness at trial to testify to such facts (see U.S. Bank, N.A. v Arias, 85 A.D.3d 1014, 1015 [2011]; Scarano v Scarano, 63 A.D.3d 716 [2009]), tenant failed to properly raise the issue of personal jurisdiction. Contrary to tenant's argument, the case of Albany Law Sch. v Young (39 Misc.3d 148[A], 2013 NY Slip Op 50908[U] [App Term, 9th & 10th Jud Dists 2013]) is inapplicable here, as the defendant in that case moved to vacate his default in appearing, submitting a sworn affidavit which specifically rebutted the facts alleged in the process server's affidavit.

Tenant, an assignee of the lease, argues that landlords failed to name a necessary party, the tenant named in the lease. However, an assignor of a lease who is not in possession is not a necessary party to a summary proceeding (C & D Car Wash, Inc. v Mroczkowski, 94 A.D.3d 935 [2012]; Radlog Realty Corp. v Geiger, 254 App Div 352 [1938]). "[A] summary proceeding, being a possessory remedy, lies only against the tenant in possession and those in possession under the tenant" (Park Prop. Dev. v Santos, 1 Misc.3d 16, 17 [App Term, 2d & 11th Jud Dists 2003] [internal quotation marks omitted]).

Tenant's remaining contention on appeal was not the subject of contest below, and is therefore not reviewable. In view of the foregoing, the final judgment of possession, insofar as reviewed, is affirmed.

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


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