109-111 1st Ave., LLC v Fromholz (2004 NY Slip Op 51489(U))

[*1]

109-111 1st Ave., LLC v Fromholz

2004 NY Slip Op 51489(U)

Decided on December 1, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 1, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: December 1, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
2004-761 RO C

109-111 1st AVENUE, LLC, Respondent,

against

STEPHEN FROMHOLZ, Appellant.

Appeal by tenant from a final judgment of the Justice Court, Village of Nyack, Rockland County (R. Knoebel, J.), entered on April 2, 2004, awarding landlord possession.

Final judgment unanimously affirmed without costs.

We find that tenant waived the defense of lack of personal jurisdiction based on improper service since he did not move for a judgment on that ground or raise the defense in the answer, which consisted only of a general denial (see CPLR 3211 [e]; Frankel v Siravo, 278 AD2d 66 [2000]; Greenpoint Bank v Schiffer, 266 AD2d 262 [1999]). In any event, service was proper.

We further find that a tenancy at will was created even without the reservation of rent (Larned v Hudson, 60 NY 102 [1875]; Stauber v Antelo, 163 AD2d 246 [1990]). Consequently, tenant's contention that no landlord and tenant relationship existed is without merit.
Decision Date: December 01, 2004