5503 805 ST MARKS STREET BROOKLYN LLC v. WHALEY (2026)

ORDERED that the appeal is dismissed.

By notice of petition and petition dated July 14, 2023, landlord commenced this nonpayment proceeding seeking possession of a rent-stabilized apartment based upon unpaid rents totaling $7,998.76. Tenant's most recent renewal lease expired on June 30, 2023. After tenant failed to appear, the Civil Court entered a default final judgment in favor of landlord. Tenant moved to vacate the final judgment and, thereafter, the parties executed a so-ordered stipulation in which tenant agreed to satisfy the arrears by a date certain and landlord agreed to send tenant a renewal lease. Tenant executed that renewal and returned it to landlord to countersign, which landlord refused to do because tenant did not provide a guarantor bond. After tenant moved by order to show cause to stay execution of the warrant, the Civil Court (Julie Poley, J.), by order dated July 19, 2024, insofar as is relevant here, sua sponte ordered landlord to countersign the renewal lease and return it to tenant. Landlord then moved to, in effect, vacate that part of the July 19, 2024 order, arguing that tenant failed to provide a guarantor bond, which was a term and condition of her expiring lease (see Rent Stabilization Code [9 NYCRR] § 2523.5 [a]). By order entered August 16, 2024, the Civil Court (Julie Poley, J.) denied landlord's motion and, sua sponte, dismissed the petition because no active lease existed as of the date of the petition.

Landlord's brief makes no arguments regarding so much of the order entered August 16, 2024 as, sua sponte, dismissed the petition. Landlord's sole argument on appeal is that its motion to vacate so much of the July 19, 2024 order as directed landlord to countersign and return the renewal lease to tenant should have been granted.

As there was no lease in effect at the commencement of the proceeding, there was no basis for the commencement of this nonpayment proceeding (see Fairfield Beach 9th, LLC v Shepard-Neely, 77 Misc 3d 136[A], 2022 NY Slip Op 51351[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). While the Civil Court denied landlord's motion to vacate the July 19, 2024 directive for landlord to countersign the renewal lease, in dismissing the petition, sua sponte, on the ground that the proceeding during which the directive was made does not lie, it necessarily nullified the directive. Under the circumstances, the sole issue raised on this appeal is academic (see Matter of Copp v Mead, 2 AD2d 873 [1956]).

Accordingly, the appeal is dismissed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.