Pepe v. Miller & Miller Consulting Actuaries, Inc.

Decision Date20 November 1995
Citation634 N.Y.S.2d 490,221 A.D.2d 545
PartiesIn the Matter of SALVATORE AND CATHERINE PEPE, a Partnership, Respondent, v. MILLER & MILLER CONSULTING ACTUARIES, INC., Appellant.
CourtNew York Supreme Court — Appellate Division

Nancy A. Luongo, Harrison, and Patrick B. Gonzalez, Scarsdale, for appellant.

Andrew J. Fiore, Pleasantville, for respondent.

Before BRACKEN, J.P., and SANTUCCI, JOY and FRIEDMANN, JJ.

MEMORANDUM BY THE COURT.

In a summary proceeding to recover possession of real property, Miller & Miller Consulting Actuaries, Inc., appeals from (1) an order of the Supreme Court, Westchester County (Coppola, J.), entered July 12, 1993, which granted the petition of Salvatore and Catherine Pepe, Partners, for possession of the subject premises and to recover arrears in rent in the sum of $68,010.05, and (2) a judgment of the same court, entered August 17, 1993, which awards possession of the subject premises to Salvatore and Catherine Pepe, Partners, and is in favor of Salvatore and Catherine Pepe, Partners, in the sum of $74,125.93.

ORDERED that the appeal from the order entered July 12, 1993, is dismissed, without costs or disbursements; and it is further,

ORDERED that the judgment entered August 17, 1993, is reversed, on the law, without costs or disbursements, the order dated July 12, 1993, is vacated, the petition is denied, and the proceeding is dismissed.

The appeal from the intermediate order entered July 12, 1993, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the proceeding (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1] ).

The landlord, Salvatore and Catherine Pepe, Partners, failed to meet the predicate requirements of a summary proceeding, which are either a demand for rent or at least three days' written notice requiring payment of the rent due or possession of the premises, served in compliance with RPAPL 735 (see, RPAPL 711). This material noncompliance with the statute requires dismissal of the proceeding (see, Stier v. President Hotel, Inc., 28 A.D.2d 795, 281 N.Y.S.2d 140; Zenila Realty Corp. v. Masterandrea, 123 Misc.2d 1, 472 N.Y.S.2d 980; Schwartz v. Weiss-Newell, 87 Misc.2d 558, 386 N.Y.S.2d 191; 2 Rasch, New York Landlord and Tenant--Summary Proceedings § 32:13, at...

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6 cases
  • Eina Realty v. Calixte
    • United States
    • New York City Court
    • August 7, 1998
    ...demand is a necessary prerequisite to the commencement of a nonpayment summary proceeding (Pepe v. Miller and Miller Consulting Actuaries, Inc., 221 A.D.2d 545, 634 N.Y.S.2d 490 [2d Dept.1995]; 2 Rasch, New York Landlord and Tenant, Summary Proceedings, § 32:13, at 512 [3rd ed.] ), the fail......
  • Kleinfeld v. Woodbury Rd. Cleaners, Inc.
    • United States
    • New York District Court
    • March 4, 2013
    ...day written notice, a nonpayment proceeding is jurisdictionally defective and must be dismissed (Pepe v. Miller & Miller Consulting Actuaries, 221 A.D.2d 545, 634 N.Y.S.2d 490 [2d Dept 1995]; Solack Estates, Inc. v. Goodman, 102 Misc.2d 504, 425 N.Y.S.2d 906 [App Term, 1st Dept 1979], affd7......
  • Salvati v. Salvati
    • United States
    • New York Supreme Court — Appellate Division
    • November 20, 1995
  • Rolling Acres Mobile Home Park v. Pike
    • United States
    • New York County Court
    • June 29, 1998
    ...nonpayment proceeding was jurisdictionally defective and the petition must be dismissed. See Pepe v. Miller & Miller Consulting Actuaries, Inc., 221 A.D.2d 545, 634 N.Y.S.2d 490 (2d Dept.1995); Lana Estates v. National Energy Corp., 123 Misc.2d 324, 473 N.Y.S.2d 912 (1984); Tolman v. Headin......
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