La Fabrique Owners Corp. v La Fabrique LLC

[*1] La Fabrique Owners Corp. v La Fabrique LLC 2007 NY Slip Op 51335(U) [16 Misc 3d 130(A)] Decided on July 9, 2007 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., DAVIS, HEITLER, JJ
.

La Fabrique Owners Corporation, Petitioner-Landlord-Respondent, No.570113/06

against

La Fabrique LLC, Respondent-Tenant-Appellant.

Tenant appeals from 1) an order of the Civil Court of the City of New York, New York County (Eileen A. Rakower, J.), entered November 15, 2005, which, inter alia, directed tenant to pay rent pendente lite; 2) an order (same court and Judge), entered December 16, 2005, which, inter alia, granted landlord's motion to strike tenant's answer and counterclaims; 3) an order (same court and Judge), entered February 28, 2006, which, upon reargument, granted landlord's motion to increase the award of rent arrears; and (4) a final judgment (same court and Judge), entered March 7, 2006, which awarded landlord possession and a recovery of rent arrears in the sum of $93,835.26 in a nonpayment summary proceeding.

Per Curiam.

Final judgment (Eileen A. Rakower, J.), entered March 7, 2006, reversed, with $30 costs, tenant's answer and counterclaims reinstated and matter remanded for further proceedings consistent with this decision. Appeals from orders (Eileen A. Rakower, J.), entered November 15, 2005, December l6, 2005 and February 28, 2006, dismissed, without costs, as subsumed in the appeal from the final judgment.

Although Civil Court properly directed tenant to pay ongoing rent pursuant to RPAPL 745(2), tenant's brief delay in tendering the second payment due warranted, at most, an "immediate trial" (RPAPL 745[2][c][ii]), and not, as landlord sought, the ultimate relief of a possessory judgment. In light of the vacatur of the final judgment, tenant's answer and counterclaims are reinstated.
THIS CONSTITUTES THE DECISION AND ORDER OF THE
COURT.
Decision Date: July 9, 2007