New Trial Required

May 31, 1994

LVT Number: 8823

Landlord sued to evict tenant to recover her apartment for owner occupancy. The trial court ruled for landlord, and tenant appealed. The appeals court reopened the case and ordered a new trial. Tenant claimed improper service of landlord's petition. The trial court found that tenant waived this defense because she'd never asked the court to dismiss landlord's proceeding. Instead, the court should have required landlord to prove that service was properly made. A new trial was needed.

Landlord sued to evict tenant to recover her apartment for owner occupancy. The trial court ruled for landlord, and tenant appealed. The appeals court reopened the case and ordered a new trial. Tenant claimed improper service of landlord's petition. The trial court found that tenant waived this defense because she'd never asked the court to dismiss landlord's proceeding. Instead, the court should have required landlord to prove that service was properly made. A new trial was needed.

Kourkoumelis v. Vincenzini: NYLJ, p. 35, col. 4 (5/31/94) (App. T. 2 Dept.; Kassoff, PJ, Scholnick, Chetta, JJ)

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