Highland Terrace, LLC v Dallis (2008 NY Slip Op 51857(U))

Highland Terrace, LLC v Dallis

2008 NY Slip Op 51857(U) [20 Misc 3d 144(A)]

Decided on September 2, 2008

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.

Highland Terrace, LLC, Landlord-Appellant,

against

Sy Dallis, Tenant-Respondent, MICHAEL BENJAMIN, Undertenant-Respondent, -and- "JOHN DOE" and "JANE DOE", Undertenants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), entered November 7, 2005. The order granted a motion by tenant Sy Dallis and undertenant Michael Benjamin for renewal and/or reargument of a prior motion by landlord to restore the matter to the calendar and for the entry of a final judgment based on an alleged default under a stipulation, to the extent of vacating the

prior order and the final judgment entered pursuant thereto and restoring the matter to the calendar.

In this holdover proceeding based on alleged breaches of the substantial obligations of the tenancy to provide access and to keep the apartment in an orderly condition, the parties entered into a stipulation of settlement which provided for a two-year probationary period during which tenant Sy Dallis and undertenant Michael Benjamin would refrain from the type of conduct described in the predicate notice to cure. Thereafter, landlord moved to restore the matter to the [*2]calendar and for the entry of judgment, alleging that the stipulation had been breached. Following a compliance hearing, the transcript of which has not been made part of the record on appeal, the Civil Court, by order dated June 20, 2005, granted landlord's motion and entered a final judgment in landlord's favor. Tenant Dallis and undertenant Benjamin then moved for leave to reargue and/or renew the motion, and their motion was granted by order dated November 7, 2005 to the extent of vacating the June 20, 2005 order and final judgment and restoring the matter to the calendar, presumably for a further compliance hearing. Landlord appeals from this order.

In our view, the appeal must be dismissed. No appeal as of right lies from an order which fails to finally determine a motion (CCA 1702 [a] [2] [v]; see e.g. Avis Rent-A-Car Sys. v Edmin Realty Corp., 209 AD2d 656 [1994]), and here, notwithstanding the Civil Court's grant of reargument, the underlying motion has not been finally determined. We note that even if the order of November 7, 2005 were appealable, proper appellate review of the propriety of the determinations of June 20, 2005 and November 7, 2005 is impossible in view of the absence from the record of the minutes of the June 20, 2005 hearing.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: September 02, 2008