Opinion
Motion No: 2016-01436 KC
12-10-2018
175 East 52nd Street, LLC, Respondent, v. Layne Lamothe, Appellant.
THOMAS P. ALIOTTA
DAVID ELLIOT, JJ.
DECISION & ORDER ON MOTION
Motion by appellant on appeals from a final judgment of the Civil Court of the City of New York, Kings County, entered April 14, 2016, and an order of that court entered June 14, 2016, to permit appellant to deposit arrears in use and occupancy into court, and, in effect, to continue a stay granted by decision and order on motion of this court dated November 9, 2016, and extended by decision and order on motion of this court dated March 6, 2017. Separate motion by respondent to vacate the stay, to award respondent judgment in the sum of $8,041.30, plus costs and attorney's fees, and for the release of funds on deposit. The order entered June 14, 2016 denied appellant's motion, in effect, to permanently stay the execution of the warrant. By order to show cause dated November 7, 2018, the parties were directed to show cause before this court why the order entered June 14, 2016 should or should not be summarily reversed on the ground that, by executing a renewal lease, respondent had vitiated the warrant and waived the right to evict appellant based on a default under the prior lease, and appellant's motion and respondent's motion were held in abeyance in the interim.
Upon the order to show cause and the papers filed by appellant in response thereto, and no papers having been filed by respondent in response thereto, and upon the papers filed in support of appellant's motion and respondent's motion, and the papers filed in opposition to respondent's motion, it is
ORDERED, on the court's own motion, that the motion for summary reversal and the motions by appellant and respondent are consolidated for the purposes of disposition; and it is further,
ORDERED that the motion for summary reversal is granted, the order entered June 14, 2016 is summarily reversed, without costs, and appellant's motion, in effect, to permanently stay the execution of the warrant is granted (see Matter of Stepping Stones Assoc. v Seymour, 48 AD3d 581 [2008]; Related Broadway Dev., LLC v Malo, 58 Misc 3d 154[A], 2018 NY Slip Op 50175[U] [App Term, 1st Dept 2018]; Delman, LLC v Ozcan, 2016 NY Slip Op 71586[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Central Ave. Partners, LLC v Liquin Huang Chen, 2014 NY Slip Op 71759[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Kew Gardens Assoc., LLC v Camacho, 3 Misc 3d 135[A], 2004 NY Slip Op 50473[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2004]); and it is further,
ORDERED that appellant's motion and the branches of respondent's motion seeking to vacate the stay and direct the release of funds on deposit are denied as moot; and it is further,
ORDERED that the branch of respondent's motion seeking an award of judgment in the sum of $8,041.30, plus costs and attorney's fees, is denied.
The funds on deposit were released to respondent by decision and order on motion of this court dated April 18, 2018.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk