Jeffrey Benjamin, Appellant, v. Laura Milberry, Respondent. (2023)

ORDERED that, on the court's own motion, the notice of appeal from the decision dated June 14, 2021 is deemed a premature notice of appeal from the final judgment entered January 18, 2022 (see CPLR 5520 [c]); and it is further,

ORDERED that the final judgment is affirmed, without costs.

In this summary proceeding petitioner commenced pursuant to RPAPL 713 (10), the Civil Court dismissed the petition after a nonjury trial. A review of the record indicates that petitioner failed to show that respondent was a person in possession of the premises at the time the proceeding was commenced (see Kesoglides v Marine Terrace Assoc., 70 Misc 3d 140[A], 2021 NY Slip Op 50126[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]), or that petitioner had a possessory interest in the premises at the time of any alleged forcible or unlawful entry/detainer (see Padilla v Rodriguez, 61 Misc 3d 133[A], 2018 NY Slip Op 51471[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Indeed, the record is devoid of any evidence showing that respondent had entered the premises by force or unlawful means, or that she remains in possession of the premises by force or unlawful means. Consequently, the Civil Court properly dismissed the petition. We note that this court has not considered evidence which is dehors the record on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the final judgment is affirmed.

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

ENTER:

Paul Kenny

Chief Clerk

Decision Date: February 24, 2023