111 ON 11 REALTY CORP v. Michael Shore, Steve Weiss, Margaret Brown, Cathy Forer, Marabeth Lund, Tara Smith, Gina Companella, “John Doe” and “Jane Doe”, Respondents-Undertenants. (2004)

Appeal by landlord from (1) a December 19, 2000 oral order of the Civil Court, Kings County (L. Baily-Schiffman, J.) denying its application to direct tenant to pay use and occupancy pendente lite, and (2) a decision after trial of said court, dated September 20, 2001, dismissing the petition and denying a further application by landlord for use and occupancy (see 189 Misc.2d 389, 732 N.Y.S.2d 840 [2001] ).   The appeal from the decision after trial is deemed to be from the final judgment entered thereon on August 12, 2002.

Appeal from order unanimously dismissed.

Final judgment unanimously reversed without costs, petition reinstated, and matter remanded to the court below for entry of a final judgment in favor of landlord after a hearing to determine the amount of use and occupancy owed.

No appeal as of right lies from an order which does not decide a motion made on notice (CCA 1702[a][2] ).   A motion on notice is made when an order to show cause or notice of motion is served (CPLR 2211).

Upon a review of the record, it is the view of this court that tenant Norton and the other tenants in the building concealed the fact that the premises were being used residentially and that landlord's principal and landlord's predecessor credibly testified that they were unaware of the residential use of the premises.   We note that the fact that tenants paid the superintendent to assist them with the conversion work cannot, in the circumstances presented, provide a basis to impute the superintendent's knowledge to landlord.