Midwest Ventures LLC v Baron

[*1] Midwest Ventures LLC v Baron 2010 NY Slip Op 51922(U) [29 Misc 3d 132(A)] Decided on November 10, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 10, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570420/10.

Midwest Ventures LLC, Petitioner-Landlord-Appellant,

against

Edward Baron and Veronika Bachman-Baron, Respondents-Tenants-Respondents.

Landlord appeals from (1) an order of the Civil Court of the City of New York, New York County (Arlene H. Hahn, J.), dated January 15, 2010, which granted tenants' motion to dismiss the petition in a holdover summary proceeding and for attorneys' fees, and (2) an order, same court and Judge, dated March 19, 2010, which denied landlord's motion to reargue and renew the aforesaid order.

Per Curiam.

Order (Arlene H. Hahn, J.), dated January 15, 2010, reversed, without costs, tenants' motion denied, petition reinstated and matter remanded for further proceedings. Appeal from order (same Judge), dated March 19, 2010, insofar as appealable, dismissed, without costs, as moot.

On the adjourned return date of landlord's motion to compel tenants to provide disclosure and tenants' cross motion to dismiss the nonprimary residence holdover petition, Civil Court declined to determine the motions, apparently because tenants were not prepared to proceed with their cross motion on that date, opting instead to mark the motions "off calendar." Since the motions were marked off calendar essentially adjourned without a new return date 22 NYCRR 208.14(c), upon which tenants subsequently relied in seeking dismissal of this proceeding on the ground that it was abandoned, is inapplicable. Rather, as the action was not marked off the calendar on the adjourned return date of the motions, tenants' motion to dismiss the proceeding as abandoned should have been denied. Upon remand, the parties are free to renew their prior motions that were marked off the calendar or seek other appropriate relief.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 10, 2010