Appeal from orders of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered August 17, 2010 and September 8, 2010, respectively.
Thor DT Brooklyn Parking, LLC v Inner City Chicken, Inc.
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
The order entered August 17, 2010 conditionally granted a motion by tenant to permanently stay execution of the warrant in a holdover summary proceeding. The order entered September 8, 2010, after a conference, again conditionally stayed execution of the warrant.
ORDERED that the appeal is dismissed.
So much of the appeal in this holdover summary proceeding as is from the order entered August 17, 2010, which conditionally granted a motion by tenant to permanently stay execution of the warrant, is dismissed as academic, as this order was superseded by the order entered September 8, 2010, which again conditionally stayed execution of the warrant. So much of the appeal as is from the order entered September 8, 2010 is dismissed, as no appeal as of right lies from an order that does not determine a motion made on notice (CCA 1702 [a] ; CPLR 2211; Wright v Stam, 81 AD3d 721 ; Sharma Med. Servs., P.C. v Progressive Cas. Ins. Co., 24 Misc 3d 137[A], 2009 NY Slip Op 51572[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), and leave to appeal has not been granted.
Pesce, P.J., and Rios, J., concur.
Weston, J., dissents in part and concurs in part in a separate memorandum.
Weston, J., dissents in part and concurs in part, and votes to dismiss the appeal from the order entered August 17, 2010 and to treat the notice of appeal from the order entered September 8, 2010 as an application for leave to appeal from that order, grant that application and reverse the order in the following memorandum:
While I agree with the majority's dismissal of the appeal from the
order entered August 17, 2010, I respectfully disagree with its
decision to dismiss the appeal from the September 8, 2010 order, which
was issued in response to the parties' request for clarification of
the August 17, 2010 order. Although no appeal as of right lies from
the September 8, 2010 order (see CCA 1702 [a] ; CPLR 2211), in the
exercise of discretion, I would treat the notice of appeal from that
order as an application for leave to appeal and grant the application
(see Defilippo v Cascone, 20 Misc 3d 132[A], 2008 NY Slip Op 51445[U]
[App Term, 2d
& 11th Jud Dists 2008]). In doing so, I would vote to reverse the order. In this
commercial holdover proceeding, tenant demonstrated no good cause to
relieve it from the terms of the stipulation. Tenant, who was represented by
counsel, executed a binding stipulation, whereby it agreed, among other
things, to the entry of judgment of possession and a money judgment of $77,767.20,
in exchange for a stay of the warrant of eviction. Tenant further agreed that if it
defaulted under the stipulation, the warrant would be executed. Although tenant
admittedly defaulted, tenant moved, by order to show cause, to stay execution
of the warrant. The Civil Court granted tenant's request on the condition that tenant
pay its arrears in accordance with the terms of the court's order. In the event tenant's
payments were untimely or any check did not clear, tenant's motion would be
deemed denied and no further stays would be granted. Despite this reprieve,
tenant's check for a portion of the arrears was refused for insufficient funds.
On appeal, landlord contends that the Civil Court was required to strictly enforce the stipulation of settlement. I agree.
It is well settled that "[s]tipulations of settlement are favored by the courts and not lightly cast aside" (Hallock v State of New York, 64 NY2d 224, 230  [citations omitted]). "Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be ...