48 Mamaroneck, LLC v A-Dental Lab, Inc. (2013 NY Slip Op 52155(U))

48 Mamaroneck, LLC v A-Dental Lab, Inc.

2013 NY Slip Op 52155(U) [42 Misc 3d 128(A)]

Decided on December 17, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

48 Mamaroneck, LLC, Respondent, —

against

A-Dental Lab, Inc., Appellant.

Appeal from (1) a final judgment of the City Court of White Plains, Westchester County (Barbara A. Leak, J.), entered April 5, 2011, and (2) an order of the same court (Jo Ann Friia, J.) entered June 8, 2011. The final judgment, entered pursuant to a stipulation of settlement, awarded landlord possession and the sum of $6,843. The order denied tenant's application for an order to show cause for leave to renew or reargue her prior motions to vacate the final judgment and warrant, and to dismiss the petition. The notice of appeal from the order dated June 8, 2011 is deemed a notice of appeal from an order of the same court (Jo Ann Friia, J.) entered June 1, 2011 denying tenant's prior motions (see CPLR 5512 [a]).

ORDERED that the appeal from the final judgment is dismissed, as no appeal lies from a final judgment entered on consent (see CPLR 5511); and it is further,

In this commercial nonpayment proceeding, the parties entered into a so-ordered stipulation on February 28, 2011, in which it was agreed, among other things, that landlord would be awarded a final judgment for the sum of $6,843, representing all arrears due through February 28, 2011, and that tenant would pay this sum by March 15, 2011. Landlord's claims for various additional rents and tenant's claims for various credits were to be resolved by March 31, 2011 and, if not so resolved, would be deemed resolved by the stipulation. There was no further resolution by March 31, 2011. A final judgment was entered on April 5, 2011, pursuant to the stipulation, and a warrant issued, following landlord's submission of an affidavit of noncompliance. Tenant thereafter submitted several motions seeking, among other things, to set aside the final judgment and warrant on the ground of payment. As the City Court properly determined that tenant had failed to establish its claim of payment, the order denying tenant's motions is affirmed.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: December 17, 2013