Opinion
Motion No: 2018-01479 KC
06-12-2020
SP Property 232 Court, LLC, Respondent, v. Ideal Properties Group, LLC, Appellant.
DAVID ELLIOT, J.
DECISION & ORDER ON MOTION
Motion by respondent, in effect, to recall and vacate a decision and order on motion of this court dated September 6, 2019, which, on the court's own motion, struck from this court's general calendar and appeals calendar an appeal from a final judgment of the Civil Court of the City of New York, Kings County, entered June 11, 2018, for a preference in the calendaring of the appeal, and to modify the terms of a stay granted by decision and order on motion of this court dated October 19, 2018 and extended by decision and order on motion of this court dated March 1, 2019. Separate motion by appellant to continue the stay or, in the alternative, in effect, for summary reversal. Cross motion by respondent, in effect, for the same relief sought in its main motion or, in the alternative, to dismiss the appeal. By decision and order on motion dated December 19, 2019, the branch of appellant's motion seeking to enlarge the time to perfect the appeal and to continue the stay was granted to the extent that the time to perfect the appeal was extended to 30 days after the date of that decision and order on motion and the stay was continued on condition that within five days of the date of that decision and order on motion, appellant deposit into the Civil Court the sum of $75,000; in the event the deposit was not made within the five days, the stay was vacated effective immediately after the five days, and the remainder of appellant's motion and respondent's motion and cross motion were held in abeyance in the interim. This court has been advised that the deposit was not made.
Now, upon the papers filed in support of the motions and cross motion, and the papers filed in opposition thereto, it is
ORDERED that the branch of respondent's motion seeking, in effect, to recall and vacate this court's decision and order on motion dated September 6, 2019 is denied; and it is further,
ORDERED that the branch of appellant's motion seeking summary reversal is granted, the final judgment entered June 11, 2018 is reversed, without costs, and the matter is remitted to the Civil Court for a new trial; and it is further,
ORDERED that the remaining branches of respondent's motion and cross motion are denied as academic.
This court's rules do not allow an appeal in a civil matter to be perfected upon an abridged record absent a stipulation of the parties to that effect (see Rules of the App Term, 2d, 11th & 13th Jud Dists [22 NYCRR § 731.1]; see also CPLR 5525 [b] [permitting abridged records only upon a stipulation of the parties]; Dondysh v Travelers Ins. Co., 2014 NY Slip Op 85529[U] [2014]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2014 NY Slip Op 806225[U] [2014]; Vapne v Rapfogel, 2010 NY Slip Op 75257[U] [2010]). Inasmuch as the parties have been unable to reconstruct the missing portions of the record, summary reversal and a new trial are required (see Davis Bros. Eng'g Corp. v Ferraro, 297 AD2d 275 [2002]). It is noted that this court's interim use and occupancy determination does not preclude respondent from seeking the full amount of rent owed at the new trial (see e.g. 500 Cathedral Parkway, LLC v Gutierrez, 61 Misc 3d 148[A], 2018 NY Slip Op 51723[U] [App Term, 1st Dept, 2018]; 245 Owner LLC v Mills, 58 Misc 3d 1224[A], 2018 NY Slip Op 50262[U] [Sup Ct, NY County 2018]).
ALIOTTA P.J., and ELLIOT, J., concur.
ENTER:
Paul Kenny
Chief Clerk