El-Sherif v Prendergass

[*1] El-Sherif v Prendergass 2015 NY Slip Op 51724(U) Decided on November 20, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ELLIOT, JJ.
2014-307 RI C

Mona El-Sherif, Respondent,

against

Reginald Prendergass, Appellant, -and- REGINALD McCOY, JOHN DOE, JANE DOE and MANNY DOE, Occupants.

Appeal from a final judgment of the Civil Court of the City of New York, Richmond County (Marina C. Mundy, J.), entered December 16, 2013. The final judgment, insofar as appealed from as limited by the brief, stayed the execution of the warrant of eviction only until January 31, 2014 in a holdover summary proceeding.

ORDERED that the final judgment, insofar as appealed from, is modified by providing that the execution of the warrant of eviction is stayed until further order of the Civil Court in accordance with the decision herein; as so modified, the final judgment, insofar as appealed from, is affirmed, without costs.

While married, petitioner and Reginald Prendergass (appellant) resided in a single-family home located at 19 Morningstar Road, Richmond County, New York. On July 13, 2011, pursuant to their settlement stipulation, petitioner and appellant were granted a divorce by the Supreme Court, Richmond County. In an order dated December 10, 2012, Justice Barbara I. Panepinto granted petitioner's application to sell the marital residence and required appellant, who remained in possession, to vacate five days prior to the closing date. On May 31, 2013, Justice Panepinto issued an order permitting petitioner to commence a "holdover proceeding"[FN1] against appellant for a judgment of possession and providing that appellant "shall be evicted no earlier than 5 days prior to the short sale closing of said marital residence." By order dated December 16, 2013, the Civil Court (Marina C. Mundy, J.) granted petitioner's motion for summary judgment, awarded petitioner a final judgment of possession and stayed the execution [*2]of the warrant only until January 31, 2014. The appeal, as limited by appellant's brief, is from so much of the final judgment as stayed the execution of the warrant only through January 31, 2014.

By virtue of the Supreme Court orders of December 10, 2012 and May 31, 2013, appellant is entitled to remain in possession of the premises until five days before the

closing date of the sale thereof, unless (and until) the Supreme Court modifies its order. Accordingly, we modify the final judgment, insofar as appealed from, to provide that the execution of the warrant of eviction is stayed until further order of the Civil Court, following the submission of proof that a closing date has been set or upon a showing that the Supreme Court has modified its order.

Pesce, P.J., Weston and Elliot, JJ., concur.

Decision Date: November 20, 2015

Footnotes

Footnote 1: As the issue has not been raised, we have no occasion to consider whether, in the circumstances presented, a holdover proceeding may be maintained pursuant to RPAPL 711 (1).