Opinion
2003-121 K C.
Decided December 3, 2003.
Appeal by tenants Devito Furniture Corp. and Modern Style Ltd. and "guarantors" Valeri Bouri and Andrey Osipov from an order of the Civil Court, Kings County (S. Goodheartz, J.H.O.), dated November 26, 2002, denying their motion to vacate a default final judgment and warrant, and to dismiss the petition.
Order unanimously modified by providing that the motion to vacate is granted to the extent of vacating the default final judgment and warrant as against appellants Valeri Bouri and Andrey Osipov and the petition is dismissed as against them; as so modified, affirmed without costs.
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
There is no merit in appellants' contentions that this is a holdover proceeding and that the proceeding fails because of the absence of a conditional limitation in the lease. Despite the allegation in the petition that tenants were "hold[ing] over" after a default in rent, it is clear that this is a nonpayment proceeding ( see former Civil Practice Act § 1410 [1-a] [providing that a nonpayment proceeding may be maintained when a tenant "holds over . . . after a default in rent"]). However, we modify the order and grant the motion to vacate the default final judgment and to dismiss the petition with respect to appellants Bouri and Osipov because guarantors are not proper parties in a summary proceeding and the obligation they owe to landlord is not "rent" (RPAPL 741; Goldstein v. 9 Skyline Gym Corp., NYLJ, June 4, 2002 [App Term, 9th 10th Jud Dists]; Stojanoski v. Tonick Enters., NYLJ, Apr. 9, 1996 [App Term, 2d 11th Jud Dists]; see Park Prop. Dev. v. Santos, NYLJ, July 24, 2003 [App Term, 2d 11th Jud Dists]).