Fifth & 106th St. Assoc. v Harris (2012 NY Slip Op 51910(U))

Fifth & 106th St. Assoc. v Harris

2012 NY Slip Op 51910(U) [37 Misc 3d 128(A)]

Decided on October 5, 2012

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.

Fifth and 106th Street Associates, Petitioner-Landlord-Respondent, - -

against

Hal Harris, Respondent-Tenant-Appellant, - and - "John Doe"/"Jane Doe," Respondents-Undertenants.

Tenant appeals from (1) an order of the Civil Court of the City of New York, New York County (Joseph E. Capella, J.), dated March 9, 2009, which denied his motion to dismiss the petition in a nonpayment summary proceeding; (2) so much of an order (same court and Judge), dated April 30, 2009, as denied tenant's cross motion for leave to reargue the aforesaid order; (3) a final judgment (Arlene P. Bluth, J.), entered July 15, 2009, after a jury trial, which awarded landlord possession and a recovery of rent arrears in the principal sum of $53,177; (4) a judgment (same court and Judge), entered July 15, 2009, awarding landlord $9,372.45 in prejudgment interest on the rent arrears; and (5) so much of an order (same court and Judge), entered September 1, 2010, after a hearing, as dismissed landlord's claim for attorneys' fees without prejudice to a plenary action by landlord for attorneys' fees.

Final judgment and judgment (Arlene P. Bluth, J.), each entered July 15, 2009, and order (Arlene P. Bluth, J.), entered September 1, 2010, affirmed, without costs. Appeal from order (Joseph E. Capella, J.), dated March 9, 2009, dismissed, without costs, as subsumed in the appeal from the final judgment. Appeal from order (Joseph E. Capella, J.), dated April 30, 2009, dismissed, without costs, as nonappealable.

The jury's resolution of the rent and habitability issues litigated below is supported by legally sufficient evidence and is not against the weight of the evidence. The evidence warranted a finding that landlord was owed the full rent demanded in the nonpayment petition and that tenant did not establish his breach of warranty of habitability and related defenses. The jury also reasonably could find that tenant did not recertify his income and was therefore not entitled to the benefit of a HUD Rental Assistance Program ("RAP") subsidy.

We also sustain the motion court's denial of tenant's CPLR 3211 motion to dismiss, the [*2]court having correctly rejected tenant's challenge to the validity of the building's certificate of occupancy. We have considered and rejected tenant's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 05, 2012