| Angelo Merenda v Howard L. Fried |
| Motion No: 2010-00870 wc |
| Slip Opinion No: 2010 NY Slip Op 92219(U) |
| Decided on December 22, 2010 |
| 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. |
of the State of New York for the 9th & 10th judicial Districts
FRANCIS A. NICOLAI, P.J.
JOHN R. LACAVA
ANGELA G. IANNACCI, JJ.
DECISION & ORDER ON MOTION
| Angelo Merenda, Respondent, v Howard L. Fried, Appellant. |
Motion by respondent on appeals from a decision after trial of the City Court of New Rochelle, Westchester County, dated December 3, 2009, and an order of the same court dated April 19, 2010 which, among other things, denied a motion by appellant to set aside the decision dated December 3, 2009 and granted a cross motion by respondent for the entry of a final judgment, to vacate a stay contained in an order of this court dated June 21, 2010 based on appellant's failure to comply with the payment term thereof. Motion by appellant for leave to reargue his prior motion for a stay, which was determined by order of this court dated June 21, 2010, on the ground that the payments directed do not represent the fair value of use and occupancy. Separate motion by appellant to continue the stay and for an enlargement of time to perfect the appeal on the ground that the trial minutes are not available. By decision and order of this court dated October 25, 2010, the motions were consolidated for purposes of disposition and held in abeyance, and the matter was remitted to the City Court of New Rochelle to, among other things, report, following a hearing, whether the trial testimony can be reconstructed. By report dated November 26, 2010, the City Court advised this court that it had determined that the trial testimony cannot be reconstructed.
Upon the papers filed in support of the motions and the papers filed in opposition thereto, and upon the report of the City Court of New Rochelle, it is
ORDERED, on the court's own motion, that the appeal from the decision dated December 3, 2009 is dismissed on the ground that no appeal lies from a decision (see UCCA 1702; Hall v Paez, 77 AD3d 620 [2010]); and it is further,
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ORDERED that the order dated April 19, 2010 is summarily reversed, without costs, appellant's motion to set aside the decision dated December 3, 2009 is granted to the extent of setting aside the decision and directing a new trial, respondent's cross motion for the entry of a final judgment is denied, and the matter is remitted to the City Court of New Rochelle for a new trial; and it is further,
ORDERED that the motion by respondent to vacate the stay, the motion by appellant for leave to reargue his prior motion for a stay, and the separate motion by appellant to continue the stay and enlarge the time to perfect the appeal, are denied as academic.
As the City Court of New Rochelle has determined that the trial testimony cannot be reconstructed, a new trial is necessary (see Matter of Kelly, 53 AD3d 580 [2008]; Davis Bros. Eng'g Corp. v Ferraro, 297 AD2d 275 [2002]).
ENTER:
Paul Kenny
Chief Clerk
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