| Rockalltheway, LLC v Fu Xing Zhuo & Xing Xing Chinese Rest., Inc. |
| Motion No: 2018-00321 QC |
| Slip Opinion No: 2018 NY Slip Op 79051(U) |
| Decided on July 20, 2018 |
| 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.
THOMAS P. ALIOTTA
DAVID ELLIOT, JJ.
DECISION & ORDER ON MOTION
| Rockalltheway, LLC, Respondent, v Fu Xing Zhuo and Xing Xing Chinese Restaurant, Inc., Appellants, et al., Undertenants. |
Motion by appellants, by order to show cause, for a stay pending the determination of an appeal from an order of the Civil Court of the City of New York, Queens County, entered December 20, 2017, and a final judgment of that court entered May 7, 2018. Cross motion by respondent to vacate a temporary stay contained in the order to show cause, and for the release of the funds on deposit.
Upon the papers filed in support of the motion and cross motion, and the papers filed in opposition thereto, it is
ORDERED, on the court's own motion, that so much of the appeal as is from the order entered December 20, 2017 is dismissed, as the right of direct appeal from the intermediate order terminated upon the entry of the final judgment (see Matter of Aho, 39 NY2d 241, 248 [1976]); and it is further,
ORDERED that appellants' motion is granted on condition that the appeal be perfected on or before October 5, 2018. Appellants are directed to pay to respondent from June 1, 2018 any and all arrears in rent and/or use and occupancy at the rate previously payable as rent within 10 days from the date of this decision and order on motion and to continue to pay respondent use and occupancy at a like rate as it becomes due; and it is further,
ORDERED that in the event that any of the above conditions are not met, the court, on its own motion, may vacate the stay, without further notice, or respondent may move to vacate the stay, on three days' notice; and it is further,
ORDERED that the branch of respondent's cross motion seeking to vacate the temporary stay contained in the order to show cause is denied as academic; and it is further,
ORDERED that the branch of respondent's cross motion seeking the release of funds on deposit is granted and the New York City Department of Finance is directed to release the funds on deposit in this matter to respondent Rockalltheway, LLC, less any lawful fees.
ENTER:
Paul Kenny
Chief Clerk