Silverman v. D'Arco

2016 NY Slip Op 8026, 144 A.D.3d 613, 41 N.Y.S.3d 426

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 2016
• Docket: 107586/11 2346NA 2346N
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Manuel J. Mendez, J.), entered September 10, 2014, in favor of plaintiff, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered August 13, 2014, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Supreme Court has subject matter jurisdiction over this dispute (see Chelsea 18 Partners, LP v Sheck Yee Mak, 90 AD3d 38, 41 [1st Dept 2011]). The court properly directed defendant to pay for her past and current use and occupancy for the unit while the matter was pending (see 35 Lispenard Partners, Inc. v 35 Smoke & Grill, LLC, 74 AD3d 496 [1st Dept 2010]). Since defendant failed to comply with the orders entered January 8, 2013 and April 15, 2013 directing her to pay use and occupancy, the award of possession to plaintiff is appropriate (see Park Terrace Gardens, Inc. v Penkovsky, 100 AD3d 577 [1st Dept 2012]).

The court properly struck the answer since defendant’s repeated failure to pay use and occupancy constituted willful and contumacious behavior (see Henderson-Jones v City of New York, 87 AD3d 498, 504 [1st Dept 2011]).

Defendant’s argument that plaintiff failed to meet his initial burden to establish the amount owed for use and occupancy is raised for the first time on appeal and therefore unpreserved (see Pulliam v Deans Mgt. of N.Y., Inc., 61 AD3d 519, 520 [1st Dept 2009]). Were we to review it, we would find that plaintiff met his burden by affidavit setting forth the amount that defendant owed (which defendant failed to rebut).

Concur— Friedman, J.P., Sweeny, Saxe, Kapnick and Gesmer, JJ.