APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS

DECISION

Motion by tenant-appellant to be restored to possession of the premises pending appeal and for related relief denied without prejudice to tenant renewing his application to be restored to possession in the Civil Court.

In moving in this court to be restored to possession pending appeal, tenant has included an affirmation of Franz Dextra, a Housing Court Coordinator for Brooklyn, who explains that he handled tenant's requests for assistance in rent payments and that the Department of Social Services (DSS) was solely at fault for the delay in making payments to landlord. Tenant has also included copies of DSS checks dated January 13, 2009 made out to landlord. However, these papers were not presented to the Civil Court when tenant moved to be restored in that court. These additional papers, which are not part of the record on appeal but which arguably set forth sufficient merit to restore tenant to possession of the premises (see 2246 Holding Corp. v Nolasco, 52 AD2d 377 [2008]; BJB Realty Corp., v Holloway, 10 Misc 3d 133[A], 2005 NY Slip Op 52085[U] [App Term, 2d & 11th Jud Dists 2005]; Pennsylvania Leasing Co. v Urena, App Term, 2d & 11th Jud Dists, Nov. 1, 2004, No. 2004-1447 Q C), should be presented in the first instance to the Civil Court.