Opinion
LT-003823-10.
Decided August 18, 2011.
Horing, Welikson Rosen, P.C., Attorneys for Petitioner, Williston Park, New York, Jeffrey W. Toback, P.C., Attorneys for Respondent, Oceanside, New York.
The following named papers numbered 1 to 3 submitted on this Motion on June 22, 2011
papers numbered
Notice of Motion and Supporting Documents Order to Show Cause and Supporting Documents 1 Opposition to Motion 2 Reply Papers to Motion 3Respondent moves pursuant to CPLR 5519(a)(6) for an order to fix an undertaking to stay Petitioner's eviction of Respondent while appealing this court's order of November 29, 2010.
Petitioner owns the premises located at 454-456 Central Avenue, Cedarhurst, New York and leased the same to Respondent for operation of a retail establishment for sale of infant and children's clothing.
Petitioner commenced a holdover proceeding to evict Respondent based upon a violation of paragraph 60 of the lease which provides that the lease may be terminated upon Respondent's failure to timely pay rent for a total of 3 months in an 18 month period. Petitioner terminated the lease upon service of the 5 day notice which constitutes a conditional limitation.
Respondent contends that the lease required Petitioner to serve a notice to cure before serving the 5 day notice terminating the lease. This court disagreed with Respondent's position and ruled that Petitioner properly terminated the lease by service of the 5 day notice because Respondent violated paragraph 60 of the lease by defaulting in its payment of rent for at least 3 months in an 18 month period. This court ruled that Petitioner could evict Respondent.
Respondent has perfected its appeal to the Appellate Term of the Supreme Court of the State of New York for the 9th and 10th Judicial Districts concerning the foregoing.
Respondent moved for a stay in the Appellate Term, but this motion was denied by the order dated April 12, 2011.
Respondent moves for an order staying the eviction by Petitioner pursuant to CPLR 5519(a)(6) which states:
. . . the appellant or moving party is in possession or control of real property which the judgment or order directs by conveyed or delivered, and an undertaking in a sum fixed by the court of original instance is given that the appellant or moving party will not commit or suffer to be committed any waste and that if the judgment or order appealed from, or any part of it, is affirmed, or the appeal is dismissed, the appellant or moving party shall pay the value of the use and occupancy of such property, or the part of it as to which the judgment or order is affirmed, from the taking of the appeal until the delivery of possession of the property; if the judgment or order directs the sale of mortgaged property and the payment of any deficiency, the undertaking shall also provide that the appellant or moving party shall pay any such deficiency . . .
Respondent contends that CPLR 5519(a)(6) provides for an automatic stay of an eviction upon the filing of an undertaking set by the court.
Respondent further contends that CPLR 5519(a)(6) applies to landlord/tenant disputes. This court agrees with Respondent that CPLR 5519(a)(6) applies to landlord/tenant disputes and that eviction of Respondent is automatically stayed upon the filing of the undertaking fixed by the court. See Mountbatten Equities v. Tabard Press Corp., 87 Misc 2d 861, 386 NYS2d 785 (Civ Ct, City of NY 1976), aff'd 88 Misc 2d 831, 390 NYS2d 513 (App Term, 1st Dept 1976); Oleck v. Pearlman, 49 Misc 2d 202, 267 NYS2d 76 (Sup Ct, Kings Cty 1966); 90 NY Jur 2d Real Property Possessory Actions, Sec. 292.
In Residential Landlord — Tenant Law in New York, Sec. 18:28, Andrew Scherer, Esq. and Hon. Fern Fisher, the following is stated concerning CPLR 5519(a)(6):
The appellant must deposit an undertaking with the court from which the appeal is taken. The undertaking must be sufficient to assure "that the appellant or moving party will not commit or suffer to becommitted any waste and that if the judgment or order appealed from, or any part of it, is affirmed, or the appeal is dismissed, the appellant or moving party shall pay the value of the use and occupancy of such property or the part of it as to which the judgment or order is affirmed, from the taking of the appeal until the delivery of possession of the property . . ." CPLR 5519(a)(6).
Service of the notice of appeal alone is not sufficient for an automatic stay under CPLR 5519(a)(6); the court must set, and the appellant must pay, the undertaking. Oleck v. Pearlman, 49 Misc 2d 202, 267 NYS2d 76 (Sup 1966); Pisano v. Nassau County, 41 Misc 2d 844, NYS2d 733 (Sup 1963), order aff'd, 21 AD2d 754, 252 NYS2d 22 (2d Dept 1964); Jennings v. City of Glen Falls Indus. Development Agency , 9 AD3d 773 , 780 NYS2d 672, 673 (3d Dept 2004); Maldonado v. New York County Sheriff, 2006 WL 2588911 (SD NY 2006).
The Hon. Robert F. Dolan writes the following pertinent statement concerning CPLR 5519(a)(6) in Rasch's Landlord Tenant Including Summary Proceedings, Section 47:8.
If the appellant or moving party is in possession or control of real property which the judgment or order directs be conveyed or delivered, service upon the adverse party of a notice of appeal or an affidavit of intention to move for permission to appeal, stays all proceedings to enforce the judgment or order appealed from pending the appeal, or the determination on the motion for permission to appeal, provided that an undertaking in a sum fixed by the court of original instance is given that the appellant or moving party will not commit or suffer to be committed any waste, and that if the judgment or order appealed from, or any part of it, is affirmed, or the appeal is dismissed, the appellant or moving party shall pay the value of the use and occupancy of such property or the part of it as to which the judgment or order is affirmed from the taking of the appeal until the delivery or possession of the property.
Respondent's attorney writes the following concerning the amount of undertaking to be paid by Respondent in paragraph 10 of the affirmation of Jeffrey Toback, Esq. dated May 31, 2011:
Article 42 of the lease for the subject premises calls for a rent of $3,000.00 per month, through August 31, 2011. By these calculations, there is currently owing $46,050.00 under the lease through June 30, 2011 ($28,050.00 + $18,000.00 (6 months @ $3,000/month), and it is respectfully submitted that the court should set this as the amount of the undertaking, and require that use and occupancy in the amount reserved in the lease be paid during the pendency of the CPLR § 5519 stay.
Based upon the foregoing, Respondent shall pay to Petitioner by August 31, 2011, the sum of $51,050.00 which represents the sums owed to Petitioner by Respondent pursuant to the terms of the lease through August of 2011. Thereafter, Respondent shall pay the sum of $3,000 as use and occupancy by the 15th of each month until the automatic stay of CPLR 5519(a)(6) is vacated.
If Respondent fails to comply with the foregoing, then Petitioner can immediately apply to this court upon 5 days to Respondent for an immediate judgment of eviction with no stay. This court has the power to vacate the stay once the stay is in operation. See Oleck v. Pearlman, 49 Misc 2d, 267 NYS2d 76, wherein the following is stated:
Clearly, the stay without court order was intended to become automatically operative, and equally plain is the fact that once the stay is in operation the court may, in the interest of justice, vacate, limit or modify it.
This court has modified the undertaking mentioned by CPLR 5519(a)(6) to require Respondent to make the payments set forth above. This court has the authority to do so pursuant to CPLR 2201. See Mountbatten Equities v. Tabard Press Corp., 88 Misc 2d 831, 390 NYS2d 513 (App Term, 1st Dept 1976), wherein the following is stated:
Petitioner concedes that in a commercial holdover summary proceeding a court is empowered to grant a reasonable stay (see also, CPLR 2201; C.C.A. 212; 22 NYCRR 2900.21(d); 2 Rasch, New York Law of Landlord and Tenant Summary Proceedings, 1411; Matter of Pepsi Cola Met. Bottling Co., Inc. v. Miller, 50 Misc 2d 40, 269 NYS2d 471; Novick v. Hall, 70 Misc 2d 641, 334 NYS2d 698). At bar, the interests of the parties and the public interest uniquely involved were carefully reviewed by Special Term. On review of the record we find that Special Term properly exercised its discretion.
The court in Oleck, supra, specifically held that the court has the authority to modify the automatic stay provision of CPLR 5519(a)(6) in the interest of justice. It is the court's opinion that equity and the interest of justice dictate that Respondent pay Petitioner money owed during the pendency of this appeal.
Conclusion
Respondent is entitled to an automatic stay pursuant to CPLR 5519(a)(6). Respondent shall pay the Petitioner the sum of $51,050 by August 31, 2011, which represents the amount owed through August of 2011. Thereafter, Respondent shall pay Petitioner the sum of $3,000 as use and occupancy by the 15th of each month until the automatic stay of CPLR 5519(a)(6) is vacated.
If Respondent fails to comply with the foregoing, then Petitioner may apply to this court for immediate eviction upon 5 days notice to Respondent.
So Ordered: