CORRADO v. Willie Richbourgh, Tenant. (2006)

Appeal from an order of the Justice Court of the Town of Mount Pleasant, Westchester County (Anthony J. Servino, J.), entered February 4, 2005, and from a final judgment and warrant of said court, entered and issued respectively on February 25, 2005.   The order granted landlord's motion for summary judgment and denied tenant Patricia Harris' motion for summary judgment in a holdover summary proceeding.   The final judgment, insofar as appealed from by tenant Patricia Harris, awarded possession to landlord.   The warrant directed the constable to remove the tenants.

Appeal from order and warrant dismissed.

Final judgment, insofar as appealed from by tenant Patricia Harris, affirmed without costs.

The appeal from the order is dismissed because the right of direct appeal therefrom terminated with the entry of the final judgment (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 [1976] ).   The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the final judgment (see CPLR 5501[a][1] ).   The appeal from the warrant is dismissed because no appeal lies therefrom (see UJCA 1702).

 Contrary to tenant's contention, the issuance of the warrant in the earlier nonpayment summary proceeding did not obviate landlord's right to maintain this holdover proceeding.   Landlord was entitled to waive the benefit of the statutory cancellation of the tenancy resulting from the issuance of the warrant (RPAPL 749[3] ) and did so here by accepting the rent due under the nonpayment final judgment as well as the after-accruing rent and by directing the constable not to execute the warrant (see Voorhies v. Cummings, 42 App.Div. 260, 58 N.Y.S. 1120 [1899];  see also DiGiglio v. Tepedino, 173 A.D.2d 763, 571 N.Y.S.2d 301 [1991] ).

 We note that the Justice Court did not improvidently exercise its discretion in refusing to stay this holdover proceeding based on the cotenant's military service.   Tenant did not show that her ability to defend this holdover summary proceeding was “materially impaired” by reason of the military service of the cotenant (Military Law § 301-b [1] ).   Moreover, there was no letter from the cotenant's “commanding officer stating that the servicemember's current military duty prevents appearance” (50 U.S.C. Appendix § 522[b][2] ) or any other showing that the cotenant's military duty requirements materially affected the servicemember's ability to appear (Military Law § 304).