| C Broadway, LLC v Evelyn Alegre |
| Motion No: 2019-00216 QC |
| Slip Opinion No: 2019 NY Slip Op 66374(U) |
| Decided on March 14, 2019 |
| 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.
ORDER TO SHOW CAUSE
| C Broadway, LLC, Respondent, v Evelyn Alegre, Appellant, et al., Undertenants. |
Motion by appellant for a stay pending the determination of an appeal from a decision of the Civil Court of the City of New York, Queens County, dated November 14, 2018, and a final judgment of that court entered November 14, 2018, and for related relief.
Upon the papers filed in support of the 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 decision dated November 14, 2018 is dismissed, as no appeal lies from a decision (see CCA 1702); and it is further,
ORDERED that the parties to the appeal are directed to show cause before this court why the final judgment should or should not be summarily reversed and the petition dismissed on the following grounds: 1) assuming that appellant and her husband are in fact divorced, appellant and her children have been in exclusive occupancy since 2004, and, as such, are not licensees but are in possession as tenants at sufferance or at will (see Kerrains v People, 60 NY 221 [1875]; Carbonella v Carbonella, 52 Misc 3d 141[A], 2016 NY Slip Op 51176[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Rodriguez v Greco, 31 Misc 3d 136[A], 2011 NY Slip Op 50696[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]); 2) since this court has been advised by the Supreme Court, Queens County, that no judgment of divorce was in fact entered, appellant was not a licensee but was in possession pursuant to the marital relationship (see Rosenstiel v Rosenstiel, 20 AD2d 71 [1963]); and 3) there is an unemancipated child in the premises and there has been no showing that appellant's husband has fulfilled his support obligations (see Sears v Okin, 16 Misc 3d 134[A], 2007 NY Slip Op 51510[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2007]), by filing an affirmation or an affidavit on that issue in the office of the Clerk of this Court on or before April 2, 2019; and it is further,
ORDERED that the Clerk of this Court or his designee is directed to serve a copy of this order to show cause upon the parties to the appeal by regular mail; and it is further,
ORDERED that appellant's motion is held in abeyance in the interim.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk