KNOLL MANOR ASSOCIATES OF NY v. GOLDSTEIN (2021)

ORDERED that the appeal from the decision is dismissed as no appeal lies from a decision (see UJCA 1702; Greenfield v Tassinari, 8 AD3d 529 [2004]); and it is further,

ORDERED that the appeal from the final judgment entered July 17, 2020 is dismissed, as the final judgment was superseded by the amended final judgment; and it is further,

ORDERED that the amended final judgment entered August 21, 2020 is affirmed, without costs.

Landlord commenced this holdover proceeding in the Justice Court of the Town of Ramapo, by petition dated September 4, 2019 and returnable on September 16, 2019, after tenant's lease ended upon its own terms. Due to the recusals of two judges, the case was transferred to several different courts, including the Justice Court of the Town of Orangetown, before it was transferred back to the Justice Court of the Town of Ramapo. In an answer dated February 23, 2020, tenant asserted, among other things, that the petition was not properly verified, that landlord had retaliated against tenant, and that the apartment was subject to the Emergency Tenant Protection Act of 1974 (ETPA) (L 1974, ch 576, § 4, McKinney's Uncons Laws of NY § 8621 et seq.). In a decision dated March 2, 2020, after a nonjury trial, the Justice Court awarded landlord possession. A final judgment awarding landlord possession was entered on July 17, 2020 pursuant to the decision. An amended final judgment was subsequently entered on August 21, 2020, which additionally lifted a stay imposed pursuant to the Tenant Safe Harbor Act (L 2020, ch 27, § 2).

While tenant was entitled to a verified petition (see RPAPL 741), tenant did not raise the alleged verification issue with “due diligence” (see CPLR 3022), which has been interpreted to mean within 24 hours of the receipt of the defective pleading (see Matter of Ladore v Mayor & Bd. of Trustees of Vil. Of Port Chester, 70 AD2d 603 [1979]; 1346 Park Place HDFC v Wright, 52 Misc 3d 18 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see generally Rozz v Law Offs. of Saul Kobrick, P.C., 134 AD3d 920 [2015]). Here, the issue was first raised in the answer, which had been filed the day before trial, months after tenant was served with the petition, and, therefore, any objection was waived. Even if, as tenant asserts on appeal, the issue had been raised with the Justice Court of the Town of Orangetown in the period of time the case had been pending with that court, the case was not transferred to that court until October 18, 2019, after the case had been pending for more than a month, which is substantially longer than the period during which a party can generally raise a verification issue with “due diligence.”

The Justice Court's findings that tenant failed to demonstrate, prima facie, any retaliatory eviction claim (see Real Property Law § 223-b) and that, nevertheless, landlord presented a non-retaliatory reason for termination are supported by the record. Finally, the record supports the Justice Court's finding that the apartment was not subject to the ETPA.

Accordingly, the amended final judgment is affirmed.

RUDERMAN, P.J., EMERSON and VOUTSINAS, JJ., concur.