Jackson Terrace Associates v. Patterson

159 Misc. 2d 637

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 4, 1994
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

Appeal dismissed.

In this proceeding pursuant to RPAPL 711 (5), it appears that tenant made an oral application to dismiss based upon landlord’s failure to serve a termination notice. Neither the application nor the facts supporting it appear in the record. Based on the application, the court wrote a decision purporting to grant the application and to dismiss the petition.

In our view, the appeal must be dismissed because no appeal lies from a decision (see, 10 Carmody-Wait 2d, NY Prac § 70:8). Even if an applicable order (CPLR 2219 [a]) or judgment had been entered, effective appellate review would be impossible in light of the failure to spread the facts justifying the application upon the record. In the event the application was based on the lack of a termination notice, it is noted that this court held in Jackson Terrace Assocs. v Howard (NYLJ, Apr. 7, 1993, at 26, col 2 [App Term, 9th & 10th Jud Dists]) that such a notice is not required in a proceeding brought pursuant to RPAPL 711 (5), which is not predicated on a termination of the tenancy.

We further note that no appeal has been taken from the vacatur of tenant’s default.

DiPaola, P. J., Ingrassia and Luciano, JJ., concur.