Cortazzo v. Reynolds

Decision Date14 March 1991
PartiesRudy CORTAZZO, Landlord-Respondent, v. James REYNOLDS and Jeannie Reynolds, Tenants-Appellants.
CourtNew York Supreme Court

Samuel I. Glass, Oyster Bay, for appellants.

Before DiPAOLA, P.J., and STARK and INGRASSIA, JJ.

MEMORANDUM.

Appeal by tenants from an order of the District Court, Nassau County (Feuerstein, J.) entered on January 22, 1990 denying their motion to vacate a stipulation.

Order affirmed without costs.

A nonpayment proceeding was commenced against tenants. After their default was vacated and the matter set down for trial, tenants obtained counsel, appeared before the court and stipulated in open court to a judgment of possession for the petitioner and to a judgment against them. Shortly thereafter, with the aid of new counsel, tenants moved to vacate the stipulation on the grounds that they did not owe the money set forth in the stipulation and on the ground that petitioner lacked the standing to commence this proceeding since he was not the owner of the premises. Petitioner set forth in opposition that he was the attorney-in-fact for the owner, having had a power of attorney since 1985 to conduct this type of business for the owner. The court denied the motion, holding that tenants had failed to set forth sufficient grounds for the vacatur of the stipulation.

While agreeing with the conclusion of the court below, we are constrained to note that a person holding a power of attorney, is merely an agent of the owner, and since 1977, such person may not maintain a summary proceeding in his own behalf (see, William Manor Associates v. Gregory, NYLJ May 4, 1988, at 13, col. 2, App Term [9th and 10th Jud Dists]. To the extent that the case of Rosenberg v. Suares, 105 Misc.2d 611, 432 N.Y.S.2d 620 is to the contrary, we have chosen not to follow it (see, NYJur2d, Agency, §§ 61-62). The petition in the case at bar is clearly defective since it is brought in the name of the petitioner, who was the attorney-in-fact for the owner of the premises. However, having stipulated to judgment in the court below, it is the opinion of this court that the defect herein is not one of subject matter and therefore it was waived by the tenants, who were acting with the advice of counsel (see, Woodlaurel Inc. v. Wittman, 163 A.D.2d 383, 558 N.Y.S.2d 114). In Woodlaurel, the court affirmed an order of this court denying a motion to vacate a default judgment...

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6 cases
  • Aviles v. Santana
    • United States
    • New York Civil Court
    • July 5, 2017
    ...is not authorized to maintain a summary eviction proceeding in his own name under RPAPL § 721, Cortazzo v. Reynolds (149 Misc.2d 210, 571 N.Y.S.2d 178 [App Term 2nd Dep't 1991] ), this proceeding was not brought in the agent's name. Rather, it is clear from the Petition that it was brought ......
  • Eisenhauer v. Sarrabia
    • United States
    • New York District Court
    • August 31, 1998
    ...attorney-in-fact (Rosenberg v. Suares, 105 Misc.2d 611, 432 N.Y.S.2d 620[Civil N.Y., 1980]; cited by the Appellate Term in 149 Misc.2d 210 at 211, 571 N.Y.S.2d 178); and by the guardian ad litem for an infant plaintiff (Donnelly v. Donnelly, 29 Misc.2d 469, 217 N.Y.S.2d Concerning the signi......
  • People's Home Improvement LLC v. Kindig
    • United States
    • New York Civil Court
    • September 26, 2019
    ...could be corrected by amendment and does not deprive the court of subject matter jurisdiction); Cortazzo v. Reynolds , 149 Misc. 2d 210, 571 N.Y.S.2d 178 (App. Term, 2d Dep't 1991) (holding that pleadings can be amended even with respect to misstatements regarding rent-regulated status); GS......
  • Rufai v. Providence, 2009–1023 KC.
    • United States
    • New York Supreme Court — Appellate Division
    • July 29, 2010
    ...2007]; Daley v. Billinghurst, 5 Misc.3d 138[A], 2004 N.Y. Slip Op 51621 [U] [App Term, 2d & 11th Jud Dists 2004]; see also Cortazzo v. Reynolds, 149 Misc.2d 210 [App Term, 2d & 11th Jud Dists 1991] ). As defendants admitted that they failed to comply with the provision of the stipulation re......
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