FBD Realty, LLC v. Rego Park N.H., Ltd.

FBD Realty, LLC v Rego Park N.H., Ltd. (2021 NY Slip Op 50961(U)) [*1] FBD Realty, LLC v Rego Park N.H., Ltd. 2021 NY Slip Op 50961(U) [73 Misc 3d 131(A)] Decided on October 8, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports. Decided on October 8, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : DAVID ELLIOT, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ 2020-856 Q C FBD Realty, LLC, Respondent, against Rego Park N.H., Ltd., Appellant, Robert Marx and David Marx, Tenants-Respondents, and "John Doe"/"Jane Doe," Occupants-Respondents. Law Offices of Morris Tuchman (Morris Tuchman and Stephen J. Riegel of counsel), for appellant. Gutman, Mintz, Baker and Sonnenfeldt, P.C. (Tamra Pelleman of counsel), for respondent FBD Realty, LLC. Appeal from a decision of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered March 12, 2020. The decision, made upon stipulated facts, found that landlord was entitled to recover the principal sum of $116,666.64 and that tenant was not entitled to recover on its counterclaim in a commercial holdover summary proceeding. ORDERED that the appeal is dismissed. Landlord commenced this commercial holdover proceeding in April 2019 and Rego Park N.H., Ltd. (tenant) answered, interposing a counterclaim seeking to recover for monthly overpayments from May 2017 through February 2019. Tenant subsequently vacated the premises in June 2019. In July 2019, the parties submitted stipulated facts and asked the Civil Court to determine the proper monthly rate from May 2017 through June 2019 in order to decide whether tenant should recover on its counterclaim or whether landlord was owed any money for the period March 2019 through June 2019. In an decision dated March 12, 2020, the Civil Court determined that the appropriate monthly rate for the period May 2017 through June 2019 was $29,166.66, the rate that tenant had [*2]paid from May 2017 through February 2019, and therefore that landlord was entitled to recover the principal sum of $116,666.64 and that tenant was not entitled to recover on its counterclaim. Tenant appeals from that decision. A money judgment was subsequently entered on December 11, 2020, which awarded landlord the sum of $116,666.64 as against tenant and two other named respondents, who did not appear in the proceeding, and implicitly dismissed tenant's counterclaim. No appeal lies from a decision (see CCA 1702) and we decline to deem tenant's appeal to be a premature one from the money judgment (see CPLR 5520 [c]), as, upon the record before us, the money judgment appears to have been improperly entered without a concomitant award of possession to landlord (see Fieldbridge Assoc., LLC v Sanders, 70 Misc 3d 140[A], 2021 NY Slip Op 50128[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; 615 Nostrand Ave. Corp. v Roach, 15 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2006]; Four Forty-One Holding Corp. v Bloom, 148 Misc 565 [App Term, 1st Dept 1933]). Accordingly, the appeal is dismissed. ELLIOT, J.P., TOUSSAINT and GOLIA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: October 8, 2021