Opinion
2004-685 WC.
Decided on August 11, 2005.
Appeals by tenant from two decisions of the City Court, City of White Plains, Westchester County (B. Leak, J.), dated respectively August 20, 2001 and August 22, 2003, deemed an appeal from a final judgment of that court, entered September 16, 2003, awarding landlord possession and the sum of $42,511.19. The appeal from the final judgment brings up for review an order of the same court (J. Friia, J.), dated December 17, 1999, which denied a motion by tenant to, inter alia, dismiss the petition.
Final judgment unanimously reversed without costs and petition dismissed.
PRESENT: RUDOLPH, J.P., ANGIOLILLO and COVELLO, JJ.
On a prior appeal in this nonpayment proceeding ( Stepping Stones Assoc. v. Seymour, 184 Misc 2d 990), this court reversed a final judgment in favor of landlord entered upon a default by tenant in making a court-ordered deposit. While the appeal from that final judgment was pending and after a warrant had issued pursuant thereto, landlord offered tenant an ETPA renewal lease, which tenant executed, and tenant paid the rents due thereunder. He then moved in the City Court for relief, including dismissal of the nonpayment petition, arguing that, in view of the execution of the renewal lease and landlord's acceptance of rents thereunder, landlord was no longer entitled to recover possession for the rents owed under the expired lease. By order dated December 17, 1999, the City Court (J. Friia, J.) denied the relief sought, holding that landlord was compelled, under the Emergency Tenant Protection Regulations ( 9 NYCRR 2503.5), to offer the renewal lease (citing AA Spirer Co. v. Adams, NYLJ, June 3, 1991 [App Term, 1st Dept]). Tenant renews the same contention on this appeal.
As a procedural matter, we note that Judge Friia's order is brought up for review because an appeal from a final judgment brings up for review any order which necessarily affects the final judgment other than one which has previously been reviewed by the appeals court (CPLR 5501 [a]). While landlord here objects that tenant has failed to appeal from the final judgment (tenant having appealed only from the decision after trial and from the decision after a hearing on attorney's fees), we deem the appeals from these decisions to be an appeal from the final judgment (CPLR 5520 [c]; see Gutman v. Savas, 17 AD3d 278; 134-38 Maple St. Realty Corp. v. Medina, 3 Misc 3d 134[A], 2004 NY Slip Op 50469[U] [App Term, 2d 11th Jud Dists]). Contrary to landlord's claim, the fact that the decision after trial did not explicitly state that landlord was being awarded possession (the decision states only that landlord was being awarded judgment for the specified arrears found to be due) does not preclude such treatment. Since a nonpayment proceeding is a "special proceeding to recover real property" (RPAPL 701; see RPAPL 711), an award of possession is implicit in a finding of arrears due landlord.
Turning to the merits, it is our view that landlord is no longer entitled to dispossess tenant solely for arrears due under the expired lease. The issuance of the warrant pursuant to the subsequently-reversed final judgment annulled the landlord-tenant relationship (RPAPL 749). Thus, when landlord offered and executed the renewal lease, it was under no legal compulsion to do so ( River Rd. Assocs. v. Orenstein, NYLJ, Dec. 14, 1992 [App Term, 9th 10th Jud Dists]; Blecher v. Pachay, NYLJ, May 14, 1991 [App Term, 2d 11th Jud Dists]; but see AA Spirer Co. v. Adams, NYLJ, June 3, 1991, supra). In these circumstances, tenant's entitlement to possession flows from the renewal lease, and he cannot be dispossessed for the default under the expired lease ( River Rd. Assocs. v. Orenstein, NYLJ, Dec. 14, 1992, supra; Blecher v. Pachay, NYLJ, May 14, 1991, supra; see also Kew Gardens Assoc. v. Camacho, 3 Misc 3d 135[A], 2004 NY Slip Op 50473[U] [App Term, 2d 11th Jud Dists]; cf. RPAPL 711 [providing that a landlord may, in a writing, waive his right to maintain a nonpayment proceeding]). Landlord's remedy is to seek to recover the arrears in a plenary action.
Although the petition is being dismissed, tenant's request for attorney's fees is denied because his failure to pay rent was established at trial ( Ram I, LLC v. Stuart, 248 AD2d 255).