Opinion
No. 23957.
December 10, 2003.
Appeals by tenant from a final judgment of the Civil Court, Kings County (G. Wright, J.), entered September 17, 2001, granting landlord possession in a summary holdover proceeding; an order of the same court, dated October 31, 2001, granting landlord's motion to vacate a stay of the warrant of eviction; an order of the same court, dated February 15, 2002, granting tenant's motion to renew with regard to the October 31, 2001 order and, upon renewal, adhering thereto; and orders of the same court, dated March 20, 2002 and April 12, 2002 which, respectively, in effect, granted tenant's motion seeking, inter alia, to vacate the final judgment and warrant to the extent of setting the matter down for a hearing, and denied tenant's motion to vacate the final judgment and warrant, and to dismiss the petition.
Richard G. Johnson, Brooklyn, for appellant. Tenenbaum, Dunbar Berger LLP, Brooklyn (David M. Berger of counsel), for respondent.
Before: Present: Pesce, P.J., Patterson and Rios, JJ.
Memorandum.
Final judgment unanimously affirmed without costs.
Appeal from order dated October 31, 2001 unanimously dismissed as superseded.
Order dated February 15, 2002 unanimously reversed without costs and matter remanded to the court below for a determination de novo of tenant's motion for renewal with regard to landlord's motion to vacate the stay of the warrant of eviction.
Appeal from order dated March 20, 2002 unanimously dismissed as no appeal lies from an order setting the matter down for a hearing.
Appeal from order dated April 12, 2002, as limited by the brief, unanimously dismissed as moot.
In this summary holdover proceeding, based on tenant's failure to cure a cluttered premises, we reject tenant's claim that the court denied him his right to a 10-day cure RPAPL 753). While the court appears to have erroneously concluded that a nuisance adjudication based on clutter in the subject premises precludes application of RPAPL 753(4) ( 196 Realty LLC v. Wolcott, NYLJ, Oct. 9, 2003 [App Term, 2d 11th Jud Dists]; Trump Village Section 3. Inc. v. Birnbaum, NYLJ, Nov. 29, 2002 [App Term; 9th 10th Jud Dists] [staying indefinitely the warrant of eviction per RPAPL 753 on proof tenant "cure[d] the cluttered conditions existing in her apartment"]; see also Lincoln Ten. Assoc. v. Snow, NYLJ, Nov. 28, 1983 [App. Term, 1st Dept]), the court stayed the warrant of eviction, until at least October 4, 2001, when landlord was permitted to inspect the premises and thereafter move to vacate the stay should the nuisance remain unabated. Thus, tenant was not, in effect, denied a cure period pursuant to RPAPL 753(4). Inasmuch as tenant raises no other appellate issues concerning the propriety of the final judgment, by which he would be aggrieved, we affirm said final judgment.
When landlord subsequently moved to vacate the stay of the execution of the warrant of eviction based on tenant's alleged failure to abate the nuisance within the 17-day cure period afforded by the court's September 17, 2001 order and final judgment, tenant's guardian ad litem failed to attend the proceedings to consider landlord's motion. Under the circumstances herein, inter alia, the elderly tenant's 36-year occupancy of a rent-controlled premises, the motion of tenant's first trial counsel, citing tenant's limited communicative and cognitive aptitudes, to be relieved only a week prior to the October 31, 2001 proceedings to determine whether tenant had timely cured the nuisance, and the unrebutted proof that tenant, assisted by new counsel, substantially cured the nuisance within days of the October 31, 2001 order vacating the September 17, 2001 stay, we cannot say that the absence of meaningful assistance to cure the nuisance in the period afforded by the court and the guardian's absence from the October 31, 2001 proceeding was harmless to tenant's interests. We note that there is also a question as to whether the landlord properly advised the tenant's guardian ad litem of the continued existence of the nuisance. Accordingly, the order of February 15, 2002 denying tenant's motion for renewal must be reversed and the matter remanded for determination de novo of said motion.
The appeal from the October 31, 2001 order granting landlord's motion to vacate the warrant of eviction is dismissed as superseded ( Firedoor Corp. of Amer. v. Reliance Elec. Co. Houghton Elevator Div., 56 A.D.2d 523; 12 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 5517.01). The appeal from the March 20, 2002 order is dismissed as no appeal lies from an order setting the matter down for a hearing to aid in the disposition of a motion ( Matter of Manufacturers Hanover Trust Co. v. Porcelli, 111 A.D.2d 175). Moreover, in view of the foregoing, the appeal from the April 12, 2002 order is dismissed as moot.