HPS Holdings Co., LLC v AL & Assoc., LLC

[*1] HPS Holdings Co., LLC v AL & Assoc., LLC 2005 NY Slip Op 52103(U) [10 Misc 3d 135(A)] Decided on December 5, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ.
2004-1025 K C

HPS Holdings Co., LLC A N.Y. LIMITED LIABILITY COMPANY, Appellant,

against

AL & Associates, LLC d/b/a OASIS LOUNGE SSH REALTY, INC., Respondents, -and- STANLEY ABRAMS, JUNE MATTHEWS and JAMAINE PILE, Undertenants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), dated May 21, 2004. The order conditionally granted a motion by tenants and undertenants to be restored to possession.

Appeal unanimously dismissed.

By accepting the benefit of the order appealed from, landlord waived its right to appeal therefrom (Cohen v Cohen, 3 NY2d 339 [1957]; Crystal Ridge Assoc. v Pascal, 2003 NY Slip Op 50669[U] [App Term, 2d & 11th Jud Dists]). We note, however, that were the appeal properly before us, we would affirm because, on the record presented, any default under the stipulation was not chargeable to tenants since landlord's agent frustrated their attempts to make [*2]timely payment.
Decision Date: December 05, 2005