Opinion
No. 2010–1149KC.
2012-04-2
KINGS HIGHWAY REALTY CORP., Respondent, v. Beverly RILEY, Appellant.
PRESENT: WESTON, J.P., RIOS and ALIOTTA, JJ.
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 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 A.D.2d 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.