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Decided on January 15, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ 2006-591 K C. NO. 2006-591 K C
Greenpoint Avenue Realty, LLC, Respondent,
against
Estate of Peter Galasso, Appellant, -and - Safway Steel Products, Inc., Undertenant.
Appeals from (1) an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), dated January 24, 2006, and (2) a final judgment of said court (Jack M. Battaglia, J.), entered May 19, 2006. The order, inter alia, granted a motion by landlord to resettle a previous order and for partial summary judgment determining that the proper monthly rent was $19,988.33. The final judgment, entered pursuant to the January 24, 2006 order and a stipulation, insofar as appealed from as limited by the stipulation, awarded landlord the sum of $562,038.41.
Appeal from order dismissed.
Final judgment, insofar as appealed from, reversed without costs, so much of the order as granted that branch of landlord's motion seeking partial summary judgment determining that the proper monthly rent was $19,988.33 per month vacated, and, upon searching the record, partial summary judgment is awarded in favor of appellant determining that the proper monthly rent is $2,283.33, and the matter is remanded to the court below for an assessment of the rents owed, in accordance with the following memorandum.
The appeal from the intermediate order is dismissed because the right of direct appeal therefrom terminated with the entry of the final judgment (see Matter of Aho, 39 NY2d 241, 248 [*2][1976]). The issues raised on the appeal from the order are brought up for review on the appeal from the final judgment (see CPLR 5501 [a] [1]). Although the final judgment was entered pursuant to a stipulation of the parties, it is appealable with respect to the issue preserved for appeal in the stipulation (see Messina v Lufthansa German Airlines, 64 AD2d 890 [1978], affd 47 NY2d 111 [1979]; Nayman v Remsen Apts., 125 AD2d 375 [1986]; Bragston Realty Corp. v Dixon, 180 Misc 2d 1018 [App Term, 2d & 11th Jud Dists 1999]).
The Estate of Peter Galasso was substituted as tenant by the court below after his death, and the notices of appeal state that the estate is the appellant. An estate is not a legal entity, and any action on behalf of or against an estate must be by or against the executor or administrator of the estate in his or her representative capacity (Grosso v Estate of Gershenson, 33 AD3d 587 [2006]; Estate of Fleming v Delia, NYLJ, May 30, 2000 [App Term, 9th & 10th Jud Dists]). Therefore, such a person representing the estate should have been substituted as tenant, and the caption amended accordingly. However, since Nancy Galasso was appointed preliminary executrix of the estate prior to the substitution of the estate as a party and prior to the filing of the notices of appeal on behalf of the estate, and because she participated in the proceeding in that capacity, the defect in the notices of appeal is not jurisdictional, and we deem Nancy Galasso as personal representative of the Estate of Peter Galasso to be the tenant-appellant (cf. McDonough v Bonnie Hgts. Realty Corp., 249 AD2d 520 [1998]).
In this nonpayment proceeding, landlord alleged in the petition that tenant Peter Galasso was in possession of the subject commercial property pursuant to a 1962 agreement in which he promised to pay $19,988 per month as rent. However, landlord's actual claim is that the 1962 lease, which was for a 20-year term, allowed tenant to renew the lease for two further 20-year terms; that, during the first renewal term, tenant elected to exercise the second renewal option; that tenant thereafter failed to appoint an appraiser which he was required to do under the lease's appraisal process for fixing the rent for the second renewal period; and that, as a consequence thereof, landlord unilaterally fixed the amount of the renewal rent at the sum fixed by its appraiser, which is the monthly rental amount sought in the petition.[FN1] Tenant answered and moved to dismiss, asserting, inter alia, that no rent was owed because the parties had reached an "impasse" in the appraisal process. The court below denied tenant's motion to dismiss and set the matter down for a hearing to determine the renewal rent. After tenant's attorney took the position that the court's order allowed him to present proof at the hearing as to the amount fixed by tenant's appraisers, landlord moved to resettle the court's order, and for partial summary judgment fixing the renewal rent at the amount sought in the petition. By order dated January 24, 2006, the court granted landlord's motion. Subsequently, it was stipulated that landlord would have a possessory final judgment in the sum of $562,038.41, but the Estate of Peter Galasso (Peter Galasso having died, and the estate by then having been substituted as tenant) reserved its right "to challenge on appeal the amount of monthly rent due under the ground lease." Tenant was evicted in July 2006 pursuant to the final judgment.
We interpret the stipulation as allowing this court to review the amount of rent awarded [*3]but not the award of possession, which we leave undisturbed. In our view, the amount of monthly rent sought in the petition and awarded by the court below is not the correct rent. Appellant contends on appeal that landlord itself failed to nominate an appraiser in accordance with the renewal terms of the lease which, inter alia, required each party to nominate an appraiser within a specified period of time. Irrespective of which of the parties defaulted in fulfilling their obligations under the lease's appraisal process, landlord was not entitled, under the terms of the lease, to recover its unilaterally imposed value as the renewal rent (see ADB Mgt., LLC v Gardenberry, Inc., 36 AD3d 726 [2007]). Rather, the lease expressly called for the execution of a renewal lease after a rental amount had been fixed pursuant to the appraisal process. Since no renewal lease was executed, and there was no new agreement as to the amount of rent, the tenancy continued, upon landlord's acceptance of rent after the expiration of the first renewal period, at the rental amount being paid under the terms of the first renewal (see City of New York v Pennsylvania
R.R. Co., 37 NY2d 298, 300 [1975]; Logan v Johnson, 34 AD3d 758, 759 [2006]; Bonner v Nash, 70 Misc 2d 752 [App Term, 1st Dept 1972]; see also Trustees of Columbia Univ. v Kalvin, 250 NY 469, 473-474 [1929]). Under New York law, a landlord cannot unilaterally impose a higher rent than that which was agreed to previously, and bring a nonpayment proceeding to collect it (Matter of Jaroslow v Lehigh Val. R.R. Co., 23 NY2d 991 [1969]; Matter of Industrial Funding Corp. v Megna, 87 Misc 2d 443 [1976]). Accordingly, the final judgment is reversed insofar as appealed from, so much of the order as awarded landlord partial summary judgment is vacated, partial summary is awarded in favor of appellant determining that the proper rent is $2,283.33 per month and the matter is remanded for an assessment of the rents owed.
Golia and Belen, JJ., concur.
Decision of Weston Patterson, J.P., to follow.
Weston Patterson, J.P., concurs in part and dissents in part and votes to dismiss the appeal from the order, reverse the final judgment insofar as appealed from, vacate so much of the order as granted that branch of landlord's motion seeking partial summary judgment determining that the proper monthly rent was $19,988.33 per month, and remand the matter to the court below for a hearing to determine the proper "amount of rent."
While I agree with the majority's dismissal of the appeal from the order and with its determination denying landlord's motion for partial summary judgment on the ground that landlord was not entitled to fix unilaterally the amount of the rent pursuant to the terms of the lease, I would not award summary judgment to tenant, but rather would remand the case to the lower court for further proceedings.
On appeal, tenant merely seeks to reverse the order which granted partial summary [*4]judgment in favor of landlord and specifically requests that this proceeding be remanded for a hearing to determine the "amount of rent" landlord is entitled to collect from tenant during the second renewal period. There is no basis to go beyond the request of the tenant. Since the facts of this case have not fully been developed at a hearing, it is premature to award judgment in favor of either party.
Accordingly, I vote to reverse the final judgment, vacate the order granting partial summary judgment, deny landlord's motion and remand the case for further proceedings. Decision Date: January 15, 2008


Footnotes
Footnote 1: Appellant raises for the first time on appeal that the petition does not properly state the facts of the proceeding. However, this objection is not preserved for review under the terms of the stipulation.

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