Sears v Okin

[*1] Sears v Okin 2007 NY Slip Op 51510(U) [16 Misc 3d 134(A)] Decided on July 26, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 26, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., LaCAVA and EMERSON, JJ
2006-2160 OR C.

Roy C. Sears, Jr., Respondent,

against

Michele Okin, Appellant.

Appeals from (1) a decision, dated November 21, 2006, (2) a final judgment, entered December 7, 2006, and (3) an order, dated December 14, 2006, of the Justice Court of the Town of Cornwall, Orange County (Joseph L. Thomson, J.). The decision and final judgment, after a nonjury trial, awarded possession to landlord in a summary proceeding. The order, inter alia, rejected an undertaking filed by appellant to obtain a stay pending appeal (see CPLR 5519 [a] [6]).

Appeals from decision and order dismissed.

Final judgment modified by providing that execution of the warrant is stayed until further order of the Justice Court in accordance with the following decision; as so modified, affirmed without costs.

In this summary proceeding, petitioner, the owner of the subject house, seeks to recover possession thereof from appellant, his former domestic partner. The petition asserts that appellant is in possession pursuant to an agreement made between the parties in May 2005 in a Family Court matter and an order entered pursuant thereto on March 31, 2006, and that appellant's right to reside in the premises expired on June 30, 2006 pursuant to the agreement and order. After a trial, the Justice Court awarded possession to petitioner, and a warrant issued.

On appeal, appellant contends that this proceeding does not lie since it, in effect, seeks specific performance of an agreement to vacate, which relief, she argues, is not within the jurisdiction of the Justice Court. In our view, appellant's contention is without merit, as this proceeding seeks to recover possession of the premises after the expiration of appellant's right to remain in possession (UJCA 204). We note, however, that the parties' two minor children reside with appellant in the premises and that, while there is a Family Court order for their support in existence, it is unclear whether the existing order includes an allowance for alternate housing. Indeed, this court is advised that there are currently pending before the Family Court [*2]applications for clarification and/or modification of the existing order. Since an eviction may not occur absent a support order that clearly includes an allowance for alternate housing for the parties' minor children (see Sears v Okin, 6 Misc 3d 127[A], 2004 NY Slip Op 51691[U] [App Term, 9th & 10th Jud Dists]), execution of the warrant is stayed until petitioner establishes to the Justice Court that there has been compliance with this requirement.

The appeal from the decision is dismissed because no appeal lies therefrom (UJCA 1702; see Schicchi v J. A. Green Constr. Corp., 100 AD2d 509 [1984]). The appeal from the order rejecting appellant's undertaking filed to obtain a stay pending appeal is dismissed as moot.

Rudolph, P.J., LaCava and Emerson, JJ., concur.
Decision Date: July 26, 2007