Kings Highway Realty Corp. v Riley (2012 NY Slip Op 50572(U))

Kings Highway Realty Corp. v Riley

2012 NY Slip Op 50572(U) [35 Misc 3d 127(A)]

Decided on April 2, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

Kings Highway Realty Corp., Respondent, —

against

Beverly Riley, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (John H. Stanley, J.), dated April 15, 2010, deemed from a final judgment of the same court entered April 15, 2010 (see CPLR 5520 [c]). The final judgment, entered pursuant to the April 15, 2010 order, granting, following a hearing, landlord's motion for the entry of a final judgment, awarded landlord possession in a holdover summary proceeding.

ORDERED that the final judgment is reversed, without costs, the order granting landlord's motion for the entry of a final judgment is vacated, landlord's motion is denied, and the petition is dismissed.

In this holdover summary proceeding to recover possession of a rent-stabilized apartment, tenant entered into a stipulation in which she agreed, among other things, that landlord could restore the matter to the calendar for the entry of a final judgment if tenant violated the terms of the stipulation. Following a hearing, the Civil Court granted a motion by landlord for the entry of a final judgment. On appeal, tenant argues, among other things, that the final judgment should be reversed and the petition dismissed based on landlord's undisputed failure to serve a notice of termination.

As landlord did not serve a notice terminating the tenancy, there was no basis for this [*2]holdover proceeding (RPAPL 711 [1]; see 89-09 Sutphin Corp. v Scarinzi, 187 Misc 536 [App Term, 2d Dept 1946]; cf. Dass-Gonzalez v Peterson, 258 AD2d 298 [1999]). Tenant's inadvertent and unknowing waiver of this fundamental defect in landlord's case cannot be given effect (see Baumeister v Casieri, 32 Misc 2d 654 [App Term, 1st Dept 1961]), particularly in view of the provisions of the Rent Stabilization Code (RSC) requiring that no tenant be removed unless the landlord shall have given the tenant a written termination notice (RSC [9 NYCRR] § 2524.2 [a]) and that an "agreement by the tenant to waive the benefit of any provision of . . . this Code is void" (RSC [9 NYCRR] § 2520.13). Accordingly, the final judgment is reversed, the order granting landlord's motion for the entry of a final judgment is vacated, landlord's motion is denied and, pursuant to CPLR 409 (b), the petition is dismissed.