Appeal from (1) a final judgment of the District Court of Nassau County, First District (Vito M. DeStefano, J.), entered May 2, 2005, and (2) an order of said court (Scott Fairgrieve, J.), dated August 18, 2005. The final judgment awarded landlords possession and the sum of $2,653. The order denied tenants' motion to vacate the final judgment and warrant.

Appeal from final judgment dismissed.

Order affirmed without costs.

In this holdover proceeding, the parties, on January 28, 2005, entered into a stipulation of settlement which required tenants, who were recipients of a Section 8
housing assistance subsidy, to surrender the premises broom clean by April 15, 2005, with time of the essence. The stipulation fixed a discounted amount of use and occupancy to be paid through that date but provided that, upon a breach, landlords would be entitled to judgment "as sought in the petition." The petition had demanded a judgment of possession and, inter alia, "the fair value of use and occupancy of the Premises after January 1, 2005." After tenants failed to vacate by April 15, 2005 as required under the stipulation, and after notice of the default to tenants' attorney, landlords had a final judgment entered awarding them possession and the sum of $2,653. According to landlords' affidavit of default, the $2,653 represented tenants' share of the rent, $352, for January through April 2005, totaling $1,408, and the full May rent of $1,245.

Tenants subsequently moved to vacate the final judgment and warrant. They claimed that [*2]landlords had reinstated the tenancy by accepting a partial payment of May 2005 rent, and by including May 2005 rent in the judgment. They also challenged the award of $1,245 for May 2005 on the ground that, as Section 8 tenants, they were responsible only for the tenants' share of the rent for May 2005. The District Court found that, in the circumstances presented, the tenancy had not been reinstated, but it did not address tenants' challenge to the propriety of the monetary award.

Tenants' appeal from the final judgment is dismissed because no appeal lies from an unopposed judgment entered upon the parties' stipulation (see Chemical Bank v Zisholtz, 227 AD2d 580 [1996]). The order is affirmed. Contrary to tenants' contention, a Section 8 tenant who holds over after the termination of the Section 8 tenancy is responsible for the full amount of use and occupancy accruing in the period after the termination (see Community Props. v McCloud, 2003 NY Slip Op 51088[U] [App Term, 9th & 10th Jud Dists]). Tenants' further contention, raised for the first time on appeal, that it was improper for the court to enter judgment for the May 2005 use and occupancy without holding a hearing as to the proper amount thereof was not raised upon tenants' motion to set aside the final judgment and will not be considered (see Stanley Weisz P.C. Retirement Plan v Holubar, 275 AD2d 704 [2000]). We note, however, that the amount awarded for the May 2005 use and occupancy represented the contract rent.

Rudolph, P.J., McCabe and Molia, JJ., concur.
Decision Date: September 24, 2007