Mauceri v Sierra

[*1] Mauceri v Sierra 2009 NY Slip Op 52631(U) [26 Misc 3d 127(A)] Decided on December 23, 2009 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2008-1944 Q C.

Anthony Mauceri, Respondent,

against

Louis Sierra, Tenant, Adalina Leyva, Appellant, -and- "John Doe" and "Jane Doe", Undertenants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Bruce Marc Kramer, J.), entered September 3, 2008. The order granted a motion by tenant Adalina Leyva seeking to stay execution of the warrant until August 31, 2008.

ORDERED that the appeal is dismissed.

In this chronic-nonpayment holdover proceeding, landlord and Adalina Leyva (tenant), both represented by counsel, entered into two consecutive stipulations of settlement. The second stipulation, dated July 9, 2007, provided, among other things, that tenant would be given a 12-month probationary period, and that landlord could seek a final judgment of possession if tenant failed to comply with the terms of the stipulation. By motion dated April 2, 2008, landlord moved to restore the proceeding and for a final judgment of possession, alleging that tenant had defaulted on the terms of the second stipulation. After a hearing, the Civil Court found, by decision dated June 26, 2008, that tenant was in default of the stipulation, and that landlord was entitled to a final judgment of possession. The Civil Court stayed execution of the warrant until August 31, 2008, but only upon the condition that tenant make certain payments by the dates set forth in the decision. A final judgment awarding landlord possession was entered on June 26, 2008, with execution of the warrant stayed according to the June 26, 2008 decision.

After receiving a notice of eviction, tenant moved, by order to show cause dated August 18, 2008, to vacate the notice of eviction and to stay execution of the warrant until August 31, 2008 or until a hearing could be held on the issue of compliance with the terms of the court's June 26, 2008 decision. By order entered September 3, 2008, the Civil Court stayed execution of the warrant until September 30, 2008 for tenant to vacate. Tenant appeals from that order.

The June 26, 2008 final judgment, which was not appealed, allowed tenant to postpone [*2]execution of the warrant until August 31, 2008 by complying with the terms of the decision. It did not provide that compliance with the terms of the decision would entitle tenant to vacatur of the final judgment or warrant entered pursuant thereto, and, indeed, tenant's August 18, 2008 order to show cause did not seek such relief, but merely sought a stay through August 31, 2008. Accordingly, as the order appealed from stayed execution of the warrant beyond the August 31, 2008 date, tenant is not aggrieved by the order (CPLR 5511) and her appeal must be dismissed.

We note that, in any event, contrary to tenant's contentions on appeal, the July 9, 2007 stipulation did not require a hearing on the merits of the underlying petition in order for landlord to obtain a final judgment of possession. Instead, reading the two stipulations together, it is clear that the parties intended that landlord would be entitled to a judgment of possession if he demonstrated that tenant had defaulted on the terms of either stipulation. Indeed, tenant did not move for a hearing on the merits of the petition in the Civil Court.

Finally, it is noted that landlord asserts on appeal that tenant was evicted in December 2008 and that there is a new tenant in possession of the subject premises. Consequently, tenant could not, in any event, be restored to possession at this time without joining the new tenant (see e.g. Eight Assoc. v Hynes, 102 AD2d 746 [1984], affd 65 NY2d 739 [1985]).

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2009