| Jessamy v Waltonsteed |
| 2006 NY Slip Op 51742(U) [13 Misc 3d 128(A)] |
| Decided on September 14, 2006 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeals from a decision after trial of the City Court of New Rochelle, Westchester County (Gail B. Rice, J.), dated May 18, 2005, and orders of said court dated July 12, 2005 and October 13, 2005. The decision after trial awarded landlord a final judgment of possession. The order dated July 12, 2005 denied tenant's motion to set aside the decision after trial. The appeal therefrom is deemed (see CPLR 5520 [c]) a premature notice of appeal from the final judgment, entered August 8, 2005, awarding possession to landlord in this holdover summary proceeding. The order dated October 13, 2005 denied tenant's motion to vacate the final judgment of possession and warrant of eviction.
Appeal from decision dated May 18, 2005 dismissed as no appeal lies from a decision.
Final judgment reversed without costs and petition dismissed.
Appeal from order dated October 13, 2005 dismissed as moot.
In this holdover proceeding based on tenant's alleged failure to renew the lease (Emergency Tenant Protection Regulations [9 NYCRR] § 2504.2 [f]), the record reveals that tenant's last lease expired in November 2003 and that landlord did not send a lease renewal offer to tenant until August 2004. Having continued to pay rent after the expiration of her lease, tenant remained in possession as a month-to-month tenant, and landlord's subsequent service upon her of a 15-day notice, rather than a month's notice, as a predicate to the commencement of this proceeding, was insufficient to terminate this tenancy (Real Properly Law § 232-b; see Martine Assoc. v Donahoe, 11 Misc 3d 129[A], 2006 NY Slip Op 50294[U] [App Term, 9th & 10th Jud Dists]). Accordingly, the final judgment in favor of landlord must be reversed and the petition dismissed (see Gonzalez v Peterson, 177 Misc 2d 940 [1998], affd 258 AD2d 298 [*2][1999]).
We incidentally note that equity may relieve a long-term rent-stabilized tenant of an inadvertent failure timely to sign a renewal lease (Matter of 210 Realty Assoc. v
O'Connor, 302 AD2d 396 [2003]; 199 Apt. Assoc., J.V. v Stafford, 8 Misc 3d 128[A], 2005 NY Slip Op 50962[A] [App Term, 9th & 10th Jud Dists]).
Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: September 14, 2006