BORNSTEIN v. GOLDBERGER (2018)

ORDERED that so much of the appeal as was taken by Chanie Goldberger is dismissed, as she is not aggrieved by the order appealed from (see CPLR 5511; Rinaldi v. Evenflo Co., Inc., 62 AD3d 856 [2009] ); and it is further,

ORDERED that the order is affirmed, without costs.

Landlord commenced this holdover proceeding alleging that tenants' lease had expired and that the building is not a multiple dwelling. A default final judgment was entered against tenants following an inquest. Two so-ordered stipulations were subsequently entered into between the parties, the second one permitting tenants to stay in the premises until August 31, 2016, conditioned on the payment of use and occupancy by specified dates. Tenants were evicted on July 11, 2016. Following their eviction, one of the tenants, Mayer Goldberger, moved to, among other things, be restored to possession, asserting that the building in which the apartment was located was a multiple dwelling that was not properly registered with the Department of Housing Preservation and Development, and that tenants had timely paid rent for February through June 2016 so that there was no basis for their eviction on July 11, 2016. Tenant's motion was denied.

We note at the outset that the absence of a multiple dwelling registration is not a bar to the recovery of possession in a holdover proceeding (see Czerwinski v. Hayes, 8 Misc 3d 89 [App Term, 2d Dept, 2d & 11th Jud Dists 2005] ).

Inasmuch as the second stipulation required tenants to vacate the premises by August 31, 2016 and they could therefore be immediately re-evicted were they now to be restored to possession, restoration of tenants to the premises cannot be granted, regardless of whether any amounts were due at the time of the eviction (see Soukouna v. 365 Canal Corp., 48 AD3d 359 [2008]; 789 St. Marks Realty Corp. v. Waldron, 46 Misc 3d 138[A], 2015 NY Slip Op 50073[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ).

Accordingly, the order is affirmed.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.