| 26 & 34 Butler, L.L.C. v Georgette Innocent |
| Motion No: 2009-01226 KC |
| Slip Opinion No: 2009 NY Slip Op 87710(U) |
| Decided on October 28, 2009 |
| Appellate Term, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
| 26 & 34 BUTLER, LLC., Respondent, -against- GEORGETTE INNOCENT, Appellant, -and- YVES CARMEL MEIRUS, "JOHN DOE" and/or "JANE DOE", Undertenants. |
DECISION
The branch of the motion by landlord-respondent seeking to vacate the stay contained in the order of this court dated August 13, 2009 is denied as moot, as the stay was vacated by order of this court dated October 14, 2009.
The branch of the motion seeking to dismiss the appeal for failure to prosecute is denied without prejudice to renewal upon proper notice.
CPLR 2214 (b) provides that a notice of motion and supporting affidavits must be served at least eight days before the time at which the motion is noticed to be heard. CPLR 2103 (b) (6) provides that when service is by overnight delivery, one business day shall be added to the prescribed period. Landlord-respondent failed to provide the requisite nine days' notice with respect to the branch of the motion seeking to dismiss the appeal.