Greenpoint Ave. Realty, LLC v. Estate of Galasso, 2008 NY Slip Op 50208(U) (N.Y. App. Term 1/15/2008)

• Decision Date: 15 January 2008
• Docket Number: 2006-591 KC.
• Citation: 2008 NY Slip Op 50208
• Parties: GREENPOINT AVENUE REALTY, LLC, Respondent, v. ESTATE OF PETER GALASSO, Appellant, and SAFWAY STEEL PRODUCTS, INC., Undertenant.
• Court: New York Supreme Court — Appellate Term

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2008 NY Slip Op 50208(U)

GREENPOINT AVENUE REALTY, LLC, Respondent, v.ESTATE OF PETER GALASSO, Appellant, and SAFWAY STEEL PRODUCTS, INC., Undertenant.

2006-591 KC.

2006-591 KC.

Appellate Term of the Supreme Court of New York, Second Department.

Decided January 15, 2008.

Appeals from (1) an order of the Civil Court of the City of New York, Kings County(Kathy J. King, J.), dated January 24, 2006, and (2) a final judgment of said court(Jack M. Battaglia, J.), entered May 19, 2006.The order, inter alia, granted a motion by landlord to resettle a previous order and for partial summary judgment determining that the proper monthly rent was $19,988.33.The final judgment, entered pursuant to the January 24, 2006 order and a stipulation, insofar as appealed from as limited by the stipulation, awarded landlord the sum of $562,038.41.

Appeal from order dismissed.

PRESENT: WESTON PATTERSON, J.P., GOLIA and BELEN, JJ.

Final judgment, insofar as appealed from, reversed without costs, so much of the order as granted that branch of landlord's motion seeking partial summary judgment determining that the proper monthly rent was $19,988.33 per month vacated, and, upon searching the record, partial summary judgment is awarded in favor of appellant determining that the proper monthly rent is $2,283.33, and the matter is remanded to the court below for an assessment of the rents owed, in accordance with the following memorandum.

The appeal from the intermediate order is dismissed because the right of direct appeal therefrom terminated with the entry of the final judgment (seeMatter of Aho,39 NY2d 241, 248[1976]).The issues raised on the appeal from the order are brought up for review on the appeal from the final judgment (seeCPLR 5501 [a][1]).Although the final judgment was entered pursuant to a stipulation of the parties, it is appealable with respect to the issue preserved for appeal in the stipulation (seeMessina v Lufthansa German Airlines,64 AD2d 890[1978], affd47 NY2d 111[1979];Nayman v Remsen Apts.,125 AD2d 375[1986];Bragston Realty Corp. v Dixon,180 Misc 2d 1018[App Term, 2d & 11th Jud Dists1999]).

The Estate of Peter Galasso was substituted as tenant by the court below after his death, and the notices of appeal state that the estate is the appellant.An estate is not a legal entity, and any action on behalf of or against an estate must be by or against the executor or administrator of the estate in his or her representative capacity (Grosso v Estate of Gershenson,33 AD3d 587[2006];Estate of Fleming v Delia, NYLJ, May 30, 2000[App Term, 9th & 10th Jud Dists]).Therefore, such a person representing the estate should have been substituted as tenant, and the caption amended accordingly.However, since Nancy Galasso was appointed preliminary executrix of the estate prior to the substitution of the estate as a party and prior to the filing of the notices of appeal on behalf of the estate, and because she participated in the proceeding in that capacity, the defect in the notices of appeal is not jurisdictional, and we deem Nancy Galasso as personal representative of the Estate of Peter Galasso to be the tenant-appellant(cf.McDonough v Bonnie Hgts. Realty Corp.,249 AD2d 520[1998]).

In this nonpayment proceeding, landlord alleged in the petition that tenant Peter Galasso was in possession of the subject commercial property pursuant to a 1962 agreement in which he promised to pay $19,988 per month as rent.However, landlord's actual claim is that the 1962 lease, which was for a 20-year term, allowed tenant to renew the lease for two further 20-year terms; that, during the first renewal term, tenant elected to exercise the second renewal option; that tenant thereafter failed to appoint an appraiser which he was required to do under the lease's appraisal process for fixing the rent for the second renewal period; and that, as a consequence thereof, landlord unilaterally fixed the amount of the renewal rent at the sum fixed by its appraiser, which is the monthly rental amount sought in the petition.¹Tenant answered and moved to dismiss, asserting, inter alia, that no rent was owed because the parties had reached an "impasse" in the appraisal process.The court below denied tenant's motion to dismiss and set the matter down for a hearing to determine the renewal rent.After tenant's attorney took the position that the court's order allowed him to present proof at the hearing as to the amount fixed by tenant's appraisers, landlord moved to resettle the court's order, and for partial summary judgment fixing the renewal rent at the amount sought in the petition.By order dated January 24, 2006, the court granted landlord's motion.Subsequently, it was stipulated that landlord would have a possessory final judgment in...