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Gus X, LLC v. Newstar Realty and Management Corp

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


February 14, 2011

GUS X, LLC,
RESPONDENT,
v.
NEWSTAR REALTY AND MANAGEMENT CORP.,
APPELLANT, -AND- "XYZ CORP.," UNDERTENANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), dated June 26, 2009.

Gus X, LLC v Newstar Realty & Mgt. Corp.

Decided on February 14, 2011 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on February 14, 2011

PRESENT: PESCE, P.J., WESTON and GOLIA, JJ

The order, insofar as appealed from, upon denying landlord's motion to restore the matter to the calendar for entry of an amended money judgment in the amount of $59,650, found that tenant is not entitled to a credit for rent actually collected by landlord prior to the date of the parties' stipulation of settlement.

ORDERED that the appeal is dismissed.

In this commercial nonpayment proceeding to recover possession of a building and $84,500 in rent arrears, including real estate taxes and other fees owed, the parties entered into a stipulation of settlement, dated December 4, 2008, in which it was agreed, among other things, that the proceeding would be converted to a holdover proceeding; that landlord would be awarded a final judgment of possession and the sum of $35,000; that tenant would make specified scheduled payments toward the judgment; and that landlord would credit tenant with certain rents received from subtenants. A final judgment was entered pursuant to the stipulation. Shortly after tenant made the first installment payment of $10,000, landlord moved to restore the matter to the calendar for entry of an amended money judgment in the amount of $59,650. The Civil Court denied landlord's motion. However, as part of its decision, the court found that tenant was not entitled to a credit against the original judgment amount for rent actually collected by landlord from the subtenants prior to the date of the parties' stipulation of settlement. Tenant appeals this finding of the Civil Court.

Tenant's appeal must be dismissed because only an "aggrieved party" has standing to appeal (CPLR 5511). Tenant did not seek any relief in the Civil Court, and landlord's motion, which tenant opposed, was denied (see Sirius Am. Ins. Co. v Vigo Constr. Corp., 48 AD3d 450 [2008]; Anspach v Miller Bluff's Constr. Corp., 280 AD2d 564 [2001]). The fact that the order appealed from contains language or reasoning that tenant deems adverse to its interests does not furnish 'a basis for standing to take an appeal'" (Castaldi v 39 Winfield Assoc., LLC, 22 AD3d 780, 781 [2005], quoting Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473 [1986]). Thus, although tenant deems the statement in the order indicating that it is not entitled to a credit for rent actually collected by landlord from the subtenants prior to the date of the parties' stipulation of settlement adverse to its interests, its disagreement with this statement does not render it an aggrieved party and furnish standing to appeal (see Castaldi, 22 AD3d at 781). Tenant, if it be so advised, may move for appropriate relief in the Civil Court.

Pesce, P.J., Weston and Golia, JJ., concur. Decision

20110214

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