SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
July 28, 2011
Appeal from an order of the Civil Court of the City of New York, Kings County (Laurie Lynne Lau, J.), entered December 15, 2009. The order denied a motion by tenant Nelifer Luculescu to be restored to possession. The appeal from the order entered December 15, 2009 brings up for review so much of an order of the same court entered December 28, 2009 as, in effect, upon reargument, adhered to the prior determination (see CPLR 5517 [b]).
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This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2011
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ
ORDERED that the appeal from the order entered December 15, 2009 is dismissed, as that order was superseded by the order entered December 28, 2009; and it is further, ORDERED that the order entered December 28, 2009, insofar as reviewed, is affirmed, without costs.
Following her eviction after defaulting under the terms of a stipulation, Nelifer Luculescu (tenant) moved to be restored to possession. We agree with the Civil Court that tenant showed no proper basis for the relief sought (see 467 42nd St. v Decker, 186 Misc 2d 439, 440 [App Term, 2d & 11th Jud Dists 2000]; Davern Realty Corp. v Vaughn, 161 Misc 2d 550, 551 [App Term, 2d & 11th Jud Dists 1994]). Tenant's default was not de minimis, inadvertent or promptly cured (see 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]; cf. Winthrop Realty, LLC v Menal, 21 Misc 3d 141[A], 2008 NY Slip Op 52383[U] [App Term, 2d & 11th Jud Dists 2008]), and the fact that tenant might ultimately have been able to pay the rent due is an insufficient ground to restore her to possession (Sherwood Complex, LLC v Dunn, 24 Misc 3d 136[A], 2009 NY Slip Op 51497[U]; 603-607 Realty Assoc. v Gachelin, 2003 NY Slip Op 51105[U] [App Term, 2d & 11th Jud Dists 2003]).
Accordingly, the order is affirmed.
Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: July 28, 2011
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