561 W. 163rd St. Realty Corp. v Downtown Complete Constr. Corp.

[*1] 561 W. 163rd St. Realty Corp. v Downtown Complete Constr. Corp. 2020 NY Slip Op 50501(U) Decided on May 1, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 1, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, BERNICE D. SIEGAL, JJ
2019-85 K C

561 West 163rd Street Realty Corporation, Respondent,

against

Downtown Complete Construction Corp., Appellant.

Wenig Saltiel, LLP (Meryl L. Wenig, Jeffrey Saltiel and Marvin Ben-Aron of counsel), for appellant. Hagan, Coury & Associates (Paul Golden of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 20, 2018. The order, insofar as appealed from as limited by the brief, denied the branch of tenant's motion seeking, in effect, to vacate a warrant issued pursuant to a so-ordered stipulation and final judgment of that court (Sharon Bourne-Clarke, J.) entered November 8, 2018 awarding landlord possession and the sum of $30,782.34, and, sua sponte, ordered the entry of a new final judgment awarding landlord possession and the sum of $36,418.37 and the issuance of a new warrant, in a nonpayment summary proceeding.

ORDERED that so much of the appeal as is from the portion of the order that denied the branch of tenant's motion seeking, in effect, to vacate the warrant issued pursuant to the final judgment entered November 8, 2018 is dismissed as moot, as that final judgment and warrant were necessarily vacated by the portion of the order which directed the entry of a new final judgment and the issuance of a new warrant; and it is further,

ORDERED that the remainder of the appeal is dismissed on the ground that no appeal as of right lies from the sua sponte portion of the order (see CCA 1702 [a] [2]; CPLR 2211; Sholes v Meagher, 100 NY2d 333 [2003]), and leave to appeal has not been granted.

In this commercial nonpayment proceeding, the parties entered into a so-ordered stipulation dated November 7, 2018 in which it was agreed that landlord would have a final judgment for possession and the sum of $30,782.34 with the issuance of a warrant to be stayed until November 16, 2018 for payment of that sum. After failing to make a timely payment, tenant moved to vacate the stipulation, the final judgment, and, in effect, the warrant. In an order dated December 20, 2018, the Civil Court denied the motion and, among other things, sua sponte, ordered the entry of a new final judgment awarding landlord possession and the sum of $36,418.37, to include the December rent, and the issuance of a new warrant. As limited by its brief, tenant appeals from so much of the order as denied the branch of its motion seeking to vacate the warrant and as, sua sponte, ordered the entry of a new final judgment awarding landlord possession and the sum of $36,418.37 and the issuance of a new warrant. No new final judgment was entered pursuant to the order.

So much of the appeal as is from the portion of the order that sua sponte ordered the entry of a new final judgment and warrant is dismissed, as no appeal as of right lies from that portion of the order (see CCA 1702 [a] [2]; CPLR 2211; Sholes v Meagher, 100 NY2d 333 [2003]), and leave to appeal has not been granted. So much of the appeal as is from the portion of the order that denied the branch of tenant's motion seeking, in effect, to vacate the warrant issued pursuant to the stipulation is dismissed as moot, as the Civil Court's order directing the issuance of a superseding final judgment and warrant had the effect of vacating the original final judgment and warrant (cf. Matter of Rosenberg v Schwartz, 176 AD3d 1069 [2019]). Thus, there is no longer a warrant to be vacated.

Accordingly, the appeal is dismissed.

ALIOTTA, P.J., WESTON and SIEGAL, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: May 1, 2020