APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

DECISION

Motion by tenant-appellant, in essence, to be restored to possession of the premises pending determination of the appeal is granted on condition that within 10 days of the date of the order hereon tenant pay to landlord all arrears through February 2008; otherwise, motion denied. Tenant shall be restored forthwith upon making said payment.

In the event tenant makes the foregoing payment to landlord, a stay of the judgment of August 27, 2007 and the order of December 19, 2007 is granted and enforcement of the judgment and order is stayed pending hearing and determination of the appeal on condition that tenant continue to pay landlord any and all arrears in rent and/or use and occupancy from March 1, 2008, at the rate previously payable as rent within 10 days from the date of this order and continue to pay landlord use and occupancy at a like rate as it becomes due, and on condition that tenant perfects the appeal by June 6, 2008.

In the event that any of the conditions for remaining in the premises are not met, landlord may move in this court for leave to re-execute the warrant of eviction.

On the court's own motion, the appeal from the default judgment entered on August 27, 2007 is dismissed as no appeal lies by a defaulting party from judgment entered on default. However, it is noted that tenant has taken a proper appeal from the order of the court below dated December 19, 2007 which denied tenant's motion to vacate the default judgment.