Opinion
11-29-2016
Noah H. SILVERMAN, Plaintiff–Respondent, v. Mary Jo D'ARCO, Defendant–Appellant.
Law Offices of Sanford F. Young, P.C., New York (Sanford F. Young of counsel), for appellant. Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for respondent.
Law Offices of Sanford F. Young, P.C., New York (Sanford F. Young of counsel), for appellant.
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for respondent.
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 A.D.3d 38, 41, 933 N.Y.S.2d 204 [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 A.D.3d 496, 901 N.Y.S.2d 841 [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 A.D.3d 577, 954 N.Y.S.2d 451 [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 A.D.3d 498, 504, 928 N.Y.S.2d 536 [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 A.D.3d 519, 520, 878 N.Y.S.2d 302 [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).
FRIEDMAN, J.P., SWEENY, SAXE, KAPNICK, GESMER, JJ., concur.