Baumeister v. Casieri

32 Misc. 2d 654, 228 N.Y.S.2d 339, 1961 N.Y. Misc. LEXIS 3600

Opinion

Per Curiam.

Since the tenants were in possession under an unexpired lease, the landlords were not entitled to maintain a holdover summary proceeding in the absence of a contractual right to terminate the tenancy before its natural expiration date (Almarine Realty Corp. v. Stern, 203 Misc. 190). The tenants were not represented by counsel at the trial; the failure to assert this defect in the landlords’ case may not, in the circumstances, be regarded as a waiver or as an omission which, if timely asserted, might have been cured (see Varela v. Miller, 204 Misc. 88). It was, therefore error to grant a final order against the tenants who were without counsel.

The final order should be reversed, with $30 costs and petition dismissed, with costs, without prejudice to a new proceeding.

Concur — Hofstadtbb, J. P., Aurelio and Tilzer, JJ.

Final order reversed, etc.