Opinion
Motion No: 2017-01294 KC
05-16-2018
SP Property 232 Court, LLC, Respondent, v. Ideal Properties Group, LLC, Appellant.
THOMAS P. ALIOTTA
BERNICE D. SIEGAL, JJ.
DECISION & ORDER ON MOTION
Motion by appellant on an appeal from a decision of the Civil Court of the City of New York, Kings County, dated May 31, 2017, and a final judgment of that court entered June 6, 2017, to continue a stay granted by decision and order on motion of this court dated August 11, 2017, and extended by decisions and orders on motion of this court dated December 7, 2017 and March 1, 2018, respectively. The final judgment, after a joint trial of the above-captioned summary proceeding to remove appellant from a portion of the basement in a commercial premises on the ground that appellant was a squatter therein (see RPAPL 713 [3]) and a separate nonpayment proceeding to recover possession of the commercial premises, awarded respondent possession and the sum of $182,393.58 in the summary proceeding brought pursuant to RPAPL 713 (3).
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED, on the court's own motion, that the appeal is dismissed, the final judgment entered June 6, 2017 is vacated, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition in the summary proceeding brought pursuant to RPAPL 713 (3); and it is further,
ORDERED that appellant's motion is denied as academic.
After a joint trial of the above-captioned summary proceeding to remove appellant from a portion of the basement in a commercial premises on the ground that appellant was a squatter therein (see RPAPL 713 [3]) and a separate nonpayment proceeding to recover possession of the commercial premises and arrears (see RPAPL 711 [2]), the Civil Court, in its decision after trial, dismissed the above-captioned squatter proceeding and awarded respondent a nonpayment final judgment of possession and the sum of $182,393.58. However, the only final judgment that was entered, was a "holdover" final judgment, entered in the squatter proceeding, awarding landlord possession and the sum of $182,393.58. Where there is a conflict between a judgment and the decision upon which it is based, the decision controls, and the inconsistency may be corrected on appeal (see Kim v Schiller, 112 AD3d 671 [2013]). Inasmuch as the Civil Court's decision states that this squatter proceeding was dismissed, appellant is not aggrieved in this proceeding and the appeal must be dismissed (see CPLR 5511), the erroneous final judgment vacated and the matter remitted to the Civil Court for the entry of a final judgment dismissing the squatter proceeding. Respondent's remedy, if it be so advised, is to procure the entry of a proper nonpayment final judgment in the nonpayment proceeding.
We note that while the Civil Court may have believed that it was consolidating the nonpayment proceeding into the squatter proceeding, a separate summary proceeding must be maintained for each space (see Lincoln Mercury Holding Co., LLC v Magee, 42 Misc 3d 136[A], 2014 NY Slip Op 50122[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; First Central Sav. Bank v Yglesia, 37 Misc 3d 130[A], 2012 NY Slip Op 51969[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]).
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk