Opinion
As Corrected November 17, 2004.
Appeal from order unanimously dismissed.
Final judgment unanimously reversed without costs, petition reinstated, and matter remanded to the court below for entry of a final judgment in favor of landlord after a hearing to determine the amount of use and occupancy owed.
No appeal as of right lies from an order which does not decide a motion made on notice (CCA 1702 [a] [2]). A motion on notice is made when an order to show cause or notice of motion is served (CPLR 2211).
Jeffrey H. Roth, New York City, for appellant.
Silberman Rhine, LLP, New York City ( Arthur Rhine of counsel), for William Norton, respondent.
OPINION OF THE COURT
Memorandum.
Upon a review of the record, it is the view of this court that tenant Norton and the other tenants in the building concealed the fact that the premises were being used residentially and that landlord's principal and landlord's predecessor credibly testified that they were unaware of the residential use of the premises. We note that the fact that tenants paid the superintendent to assist them with the conversion work cannot, in the circumstances presented, provide a basis to impute the superintendent's knowledge to landlord.
Pesce, P.J., Patterson and Golia, JJ., concur.