Opinion
2002549WC
Decided April 13, 2005.
Appeal by tenant from a final judgment of the Justice Court, Town of Mount Kisco, Westchester County (H. Kensing, J.), entered September 13, 2001, awarding possession to landlord and staying execution of the warrant until October 8, 2001 on the condition that tenant pay landlord $75 per day for each day that tenant remained in possession after September 30, 2001.
Final judgment unanimously affirmed without costs.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and COVELLO, JJ.
Inasmuch as tenant did not dispute landlord's assertion, in the verified petition, that the tenancy terminated on July 31, 2001 after service of a month's notice, the Justice Court could properly find that the tenancy terminated on said date. Tenant's claim, denied by landlord, that, subsequent to the termination of the tenancy, landlord orally promised to allow him to stay until he closed on a house that he was purchasing, was not credited by the Justice Court, and no adequate basis is shown to disturb its determination. Tenant's objection to the terms of the stay granted by the Justice Court is moot insofar as the stay expired on October 8, 2001 ( State of New York v. General Elec. Co., 103 AD2d 985). Tenant's claim that he remained in possession until October 11, 2001 and paid the $75 per day fixed by the court as a condition of the stay and his demand for a refund of so much of his payments that he claims was in excess of the fair market value of the premises, rely on facts that are not in the record, and these claims are not brought up for review on tenant's appeal from the final judgment of September 13, 2001. In any event, if tenant paid the $75 per day as a condition of receiving the [*2]privilege of a stay, he cannot challenge the condition on appeal after having made payment and availed himself of the privilege ( see Levy v. Fidelity Deposit Co. of Maryland, 87 NYS 487 [1904]).