Cosmopolitan Assoc., LLC v Velasco

[*1] Cosmopolitan Assoc., LLC v Velasco 2010 NY Slip Op 51182(U) [28 Misc 3d 127(A)] Decided on July 7, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 9, 2010; it will not be published in the printed Official Reports.

Decided on July 7, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-623 Q C.

Cosmopolitan Associates, LLC, Appellant,

against

Oscar Velasco, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), entered March 5, 2009. The order conditionally granted a motion by tenant to be restored to possession.

ORDERED that the appeal is dismissed.

Landlord commenced this residential nonpayment proceeding to recover, inter alia, $2,293.60 in arrears. Tenant failed to appear or answer, and a final judgment was entered awarding landlord possession only. Tenant was subsequently evicted and, thereafter, moved to be restored to possession. The motion was granted on condition that tenant pay landlord the sum of $5,341.80, which included all arrears plus legal fees in the sum of $988. It appears that tenant was restored to possession after landlord accepted payment of the arrears. The instant appeal by landlord ensued.

By accepting the benefit of the order appealed from, landlord waived its right to appeal from the order (see Williams v Hearburg, 245 AD2d 794 [1997]; HPS Holdings Co., LLC v Al & Assoc., LLC, 10 Misc 3d 135[A], 2005 NY Slip Op 52103[U] [App Term, 2d & 11th Jud Dists 2005]). Accordingly, the appeal is dismissed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 07, 2010