Cornerstone Baptist Church v Cornerstone Day Care Ctr., Inc., Etc.
Motion No: 2019-00876 KC
Slip Opinion No: 2019 NY Slip Op 75070(U)
Decided on July 2, 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.


Appellate Term of the Supreme Court

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

2019-876 K C
The Cornerstone Baptist Church, Appellant, v The Cornerstone Day Care Center, Inc., etc., Respondent.

Motion by appellant for a stay pending the determination of an appeal from an order of the Civil Court of the City of New York, Kings County, entered September 27, 2018, and to direct respondent to pay use and occupancy.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the branch of the motion seeking a stay pending the determination of the appeal is granted on condition that the appeal be perfected by September 6, 2019; and is further,

ORDERED that in the event that the appeal is not perfected on or before September 6, 2019, the court, on its own motion, may vacate the stay, or respondent may move to vacate the stay, on three days' notice, and may serve such application in person; and it is further,

ORDERED that the branch of the motion seeking to direct the payment of use and occupancy is denied.

We note that appellant, if it be so advised, may commence a plenary action to recover the 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 Dept, 2d, 11th & 13th Jud Dists 2009]; Martine Assoc., LLC v Donahoe, NYLJ, July 19, 2005 [App Term, 2d Dept, 9th & 10th Jud Dists]; 17th Holding v Rivera, NYLJ, Aug. 15, 2002 [App Term, 2d Dept, 2d & 11th Jud Dists]).

ENTER:

Paul Kenny

Chief Clerk