| Homewood Gardens Estates, LLC v Hillary Gibbs |
| Motion No: 2011-00798 kc |
| Slip Opinion No: 2012 NY Slip Op 78840(U) |
| Decided on July 6, 2012 |
| 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 2nd, 11th & 13th judicial Districts
MICHAEL L. PESCE, P.J.
JAIME A. RIOS
THOMAS P. ALIOTTA, JJ.
DECISION & ORDER ON MOTION
| Homewood Gardens Estates, LLC, Appellant, v Hillary Gibbs, Respondent. |
Motion by appellant on an appeal from an order of the Civil Court of the City of New York, Kings County, dated January 21, 2011, to direct respondent to pay use and occupancy or, in the alternative, to permit appellant to commence a nonpayment proceeding for outstanding use and occupancy without prejudice to appellant's appeal. Separate motion by respondent for an enlargement of time to serve and file papers in opposition to appellant's motion.
Upon the papers filed in support of the motions and the papers filed in opposition thereto, it is
ORDERED, on the court's own motion, that appellant's motion and respondent's motion are consolidated for purposes of disposition; and it is further,
ORDERED that respondent's motion is granted and respondent's papers in opposition to appellant's motion are deemed timely served and filed; and it is further,
ORDERED that appellant's motion is denied.
We note that appellant, if it be so advised, may commence a plenary action to recover any outstanding use and occupancy without prejudicing its right to prosecute the appeal in this holdover proceeding (RPAPL 711 [1]; 1035 Washington Realty, LLC v Grange, 2009 NY Slip Op
86385[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Martine Assoc., LLC v Donahoe, NYLJ, July 19, 2005 [App Term, 9th & 10th Jud Dists]; 17th Holding v Rivera, NYLJ, Aug. 15, 2002 [App Term, 2d & 11th Jud Dists]).
ENTER:
Paul Kenny
Chief Clerk