Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Oymin Chin, J.), entered March 11, 2004. The final judgment awarded landlord possession and the sum of $6,623.28 as against tenant Newton Hinds after a nonjury trial and as against tenant Nikki Hinds based on her failure to appear at trial, in a nonpayment summary proceeding.

Appeal, insofar as taken by tenant Nikki Hinds, dismissed.

Final judgment, insofar as appealed from by tenant Newton Hinds, affirmed without costs.

The appeal by tenant Nikki Hinds is dismissed because the record indicates that the final judgment was entered against her upon her failure to appear for trial, and no appeal lies from a final judgment entered upon the default of the appealing party.

The final judgment, insofar as appealed from by tenant Newton Hinds, is affirmed. An appeal from the final judgment does not bring up for review the question of whether the issuance of a warrant pursuant to the final judgment should properly have been stayed under RPAPL 751 (1) (see Kensico Assoc. v Bennet, 2002 NY Slip Op 40375[U] [App Term, 9th & 10th Jud Dists]). In any event, appellant's contention that issuance of the warrant should have been stayed lacks merit since RPAPL 751 (1) applies only where the full amount of the final judgment is [*2]deposited into court "before a warrant is issued." In the instant matter, $4,680 was deposited into court prior to trial, but the $1,943.28 balance of the $6,623.28 judgment amount was not deposited into court until one month after the warrant issued. To the extent that tenant claims that the $4,680 deposit should have effected a stay because it represented the amount of rent due at the time that said deposit was made, we note that the deposit was not made for the purpose of having the funds turned over to landlord pursuant to RPAPL 751 (1) but merely as a condition of vacating a default final judgment which had previously been entered against tenants and restoring the matter to the calendar. Such a deposit does not stay issuance of the warrant pursuant to RPAPL 751 (1).

We note, however, that landlord has conceded, in a motion addressed to this court, that the parties executed a renewal lease subsequent to the issuance of the warrant, at a time when the landlord-tenant relationship had been cancelled by the issuance of the warrant (RPAPL 749 [3]). An examination of the copy of the renewal lease submitted by landlord upon the motion indicates that landlord did not, in the lease, reserve its rights under the instant judgment. In these circumstances, tenants' current right to possession flows from the renewal lease, and tenants cannot be dispossessed pursuant to the instant final judgment (see Stepping Stones Assoc. v Seymour, 8 Misc 3d 138[A], 2005 NY Slip Op 51309[U] [App Term, 9th & 10th Jud Dists]; River Rd. Assoc. v Orenstein, NYLJ, Dec. 14, 1992 [App Term, 9th & 10th Jud Dists]).

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: May 18, 2006