Opinion
No. 2012–653 K C.
2013-05-14
800 OCEAN AVENUE, INC., Appellant, v. Jose JUAREZ and Byron Juarez, Tenants, Jerald Miller, Nonparty–Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sheldon J. Halprin, J.), dated February 17, 2012. The order, insofar as appealed from, granted the branch of a motion by occupant Jerald Miller seeking, in effect, to permanently stay the execution of a warrant in a nonpayment summary proceeding.
Present: WESTON, J.P., PESCE and RIOS, JJ.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
Since occupant Jerald Miller established that he is in possession of the subject apartment and that landlord was aware of his presence in the apartment and did not make him a party to this proceeding, the Civil Court properly granted the branch of occupant's motion seeking, in effect, to permanently stay the execution of the warrant ( see Fults v. Munro, 202 N.Y. 34, 43 [1911];170 W. 85th St. Tenants Assn. v. Cruz, 173 A.D.2d 338, 340 [1991]; 2 Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 38:30 at 595–596 [4th ed 1998] ).