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

Appeal from an order of the Civil Court of the City of New York, Kings County, entered March 15, 2018. The order conditionally granted respondent's motion to be restored to possession in a nonpayment summary proceeding.

On the court's own motion, it is

ORDERED that the above-entitled appeal is stricken from the general calendar and the appeals calendar on the ground that the appeal has not been properly perfected in that a transcript of the hearing and/or oral argument held upon the motion giving rise to the order appealed from has not been made part of the record; and it is further,

ORDERED that the parties show cause before this court why the above-entitled appeal should or should not be dismissed on the ground that appellant has waived its right to appeal by accepting the benefit of the order appealed from (see Burkwit v Olson, 98 AD3d 1236, 1238 [2012]; HPS Holdings Co., LLC v AL & Assoc., LLC, 10 Misc 3d 135[A], 2005 NY Slip Op 52103[U] [App Term, 2d & 11th Jud Dists 2005]; Crystal Ridge Assoc. v Pascal, 2003 NY Slip Op 50669[U] [App Term, 2d & 11th Jud Dists 2003]), by filing an affidavit or affirmation on that issue with the Clerk of this court on or before November 19, 2018; and it is further,

ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this decision and order on motion on the parties' attorneys by regular mail.

The order appealed from and appellant's brief both reference matters that occurred at the hearing and/or oral argument held on respondent's motion. In these circumstances, a transcript thereof must be made part of the record.

ENTER:

Paul Kenny Chief Clerk