[*1]
Classic Equities, LLC. v Herman
2005 NY Slip Op 51734(U) [9 Misc 3d 137(A)]
Decided on October 26, 2005
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 26, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. LUCINDO SUAREZ, P.J.,
HON. WILLIAM P. McCOOE
HON. PHYLLIS GANGEL-JACOB , Justices.


Classic Equities, LLC., Petitioner-Landlord-Respondent, NY County Clerk's No. 570353/05

against

Mark Herman, Respondent-Tenant-Appellant,Calendar No. 05-228 -and- SHEM HERMAN and CLARIBEL ESPINOSA, Respondents-Undertenants. X


Tenant appeals from an order of the Civil Court, New York County, dated February 9, 2005 (Maria Milin, J.), which, inter alia, denied his motion for summary judgment dismissing the petition in a summary holdover proceeding.


PER CURIAM:

Order dated February 9, 2005 (Maria Milan, J.), affirmed, with $10 costs.

Tenant's motion for dismissal of the summary holdover proceeding for failure to prosecute was properly denied. The record establishes that the proceeding was restored to the calendar, with further disclosure directed, in a prior unappealed order (Laurie Lau, J.) dated September 26, 2003. At this procedural juncture, tenant failed to establish the applicability of 22 NYCRR 208.14 [c] and [d] inasmuch as the case was not marked off the calendar, and no trial date had been set for the restored case. We note that courts do not possess the power to dismiss an action for general delay (see Chase v. Scavusso 87 NY2d 228 [1995]).

This constitutes the decision and order of the court.
I concur
Decision Date: October 26, 2005