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East 22nd Equities LLC v. Cody Staggers As Successor To Thelma Staggers

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


July 27, 2011

EAST 22ND EQUITIES LLC,
RESPONDENT,
v.
CODY STAGGERS AS SUCCESSOR TO THELMA STAGGERS,
APPELLANT.

Appeals from orders of the Civil Court of the City of New York, Kings County (John H. Stanley, J.), entered February 9, 2010 and February 22, 2010, respectively.

New York Supreme and/or Appellate Courts

East 22nd Equities LLC v Staggers

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2011

PRESENT PESCE, P.J., WESTON and STEINHARDT, JJ

The order entered February 9, 2010 denied tenant's motion to, in essence, stay execution of a warrant of eviction in a nonpayment summary proceeding. The order entered February 22, 2010 denied tenant's motion to be restored to possession.

ORDERED that the appeal from the order entered February 9, 2010 is dismissed as moot; and it is further,

ORDERED that the order entered February 22, 2010 is affirmed, without costs.

In thisnonpayment summary proceeding, the parties entered into a so-ordered stipulation in which tenant agreed to pay the arrears by October 30, 2009. Tenant did not pay the arrears by that date, and brought a motion to, in essence, stay the execution of the warrant. Thereafter, on November 20, 2009, the parties entered into a second so-ordered stipulation, in which tenant agreed to pay the arrears by December 30, 2009. Tenant again did not pay the arrears by the agreed-upon date and brought another motion to, in essence, stay the execution of the warrant. Over landlord's objection, that motion was granted to the extent of giving tenant until January 31, 2010 to pay the arrears. Tenant again did not pay the arrears by the ordered date and brought another motion to, in essence, stay the execution of the warrant. Tenant did not have the arrears at that time. The Civil Court denied the motion by order entered February 9, 2010, and tenant was subsequently evicted. Tenant then moved to be restored to possession, which motion was denied by the Civil Court by order entered February 22, 2010.

As the warrant has been executed, the appeal from the order entered February 9, 2010, which denied tenant's motion to, in effect, stay the execution of the warrant, is moot.

The Civil Court did not improvidently exercise its discretion in denying tenant's motion to be restored to possession. Tenant was evicted after defaulting under the terms of two stipulations and one order. As tenant's multiple defaults were not de minimis, inadvertent and promptly cured, tenant showed no proper basis for the relief sought (see Davern Realty Corp. v Vaughn, 161 Misc 2d 550 [App Term, 2d & 11th Jud Dists 1994]; see also 195 St, LLC v Jones, 30 Misc 3d 130[A], 2010 NY Slip Op 52318[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Sherwood Complex, LLC v Dunn, 24 Misc 3d 136[A], 2009 NY Slip Op 51497[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 603-607 Realty Assoc. v Gachelin, 2003 NY Slip Op 51105[U] [App Term, 2d & 11th Jud Dists 2003]).

Moreover, it is noted that landlord asserts on appeal that there is a new tenant in possession of the subject premises. Consequently, tenant could not, in any event, be restored to possession at this time without joining the new tenant (see Eight Assoc. v Hynes, 102 AD2d 746 [1984], affd 65 NY2d 739 [1985]).

Accordingly, the appeal from the order entered February 9, 2010 is dismissed, and the order entered February 22, 2010 is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.

Decision Date: July 27, 2011

20110727

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