APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| DAYTON TOWERS CORP., Respondent, -against- DE VONA GETHERS, Appellant. |
DECISION
Motion by tenant-appellant to enlarge time to comply with this court's order of June 4, 2004 granted and time enlarged to five days from the date of the order hereon.
Cross motion by landlord-respondent for leave to reargue denied.
We note that the default under this court's order was de minimis and inadvertent and that tenant attempted to cure the default promptly.
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| SIMON JOHNSON and GWENETH JOHNSON, Appellants, -against- CALVIN CLARKE, Respondent. |
DECISION
Motion by tenant-appellant for a stay pending appeal is denied.
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| CLAUDIA JIMENEZ, Respondent, -and- JESSENIA CLAUDIO, Appellant, -against- WOODROW PARKER, Respondent. |
DECISION
Motion by defendant-respondent Parker for reargument or, in the alternative, leave to appeal to the Appellate Division denied.
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
| ROSS REALTY, Appellant, -against- V & A IRON FABRICATORS, INC., Respondent. |
DECISION
Motion by tenant-respondent to enlarge time to submit respondent's brief granted and said brief shall be filed and served within 14 days of the date of the order hereon.
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| UNIVERSITY TOWERS ASSOCIATES, Respondent, -against- PAT ETHEL SENIOR, Appellant. |
DECISION
Motion by tenant-appellant to stay all proceedings pending determination of the appeal is denied.
On the court's own motion, the appeal is dismissed and it is ordered that the funds deposited with the court below be released to tenant.
This proceeding was settled by stipulation dated August 13, 2003 acknowledging the tenant's payment of the arrears sought by landlord.
APPELLATE TERM : 2nd 11th JUDICIAL DISTRICTS
| ROCKAWAY ONE COMPANY, LLC., Appellant, -against- DEBORAH WIGGINS, Respondent. |
DECISION
Motion by tenant-appellant for leave to appeal to the Appellate Division denied.
Whenever a tenant asserts a claim of rent overcharge, that claim challenges the claimed legal regulated rent and is intertwined therewith. Nevertheless, this intertwining is not by itself sufficient to give the court jurisdiction where the Legislature has said that the court does not have jurisdiction. Thus, for instance, ETPA § 12 (f) provides that an overcharge claim cannot be heard in the courts where the tenant already has a DHCR overcharge complaint pending. In that situation, the tenant is challenging the claimed legal rent, yet the nonpayment proceeding goes forward, and landlord is entitled to recover the agreed-upon lease rent (e.g. Marz Realty v Reichman, NYLJ, Apr. 26, 2000 [App Term, 2d & 11th Jud Dists]; Fromme v Perper, NYLJ, May 6, 1987 [App Term, 1st Dept]) unless the tenant shows a likelihood of success at the agency, in which case a stay may be granted (Reynolds v Division of Hous. and Community Renewal, 199 AD2d 15 [1993]). Similarly here, where the agency has exclusive jurisdiction to determine the propriety of an IAI increase, the nonpayment proceeding must go forward based upon the agreed- upon lease rent, even though the tenant is challenging this rent, since the landlord showed a likelihood of success on his claim for an IAI increase.
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
| SEHAR BHAM, Respondent, -against- PATRICIA WILSON, Appellant, DEREK WILSON, Tenant. |
DECISION
That branch of the motion by tenant-appellant for an enlargement of time to perfect the appeal is denied.
That branch of the motion for poor person relief is granted.
No enlargement of time to perfect the appeal is yet required, since the 90-day period in which the movant must perfect the appeal has not yet commenced to run (see 22 NYCRR 732.8).
It is further noted that the stay issued on April 22, 2004 was automatically vacated 10 days thereafter since tenant failed to comply with the condition that she deposit all arrears with the court below.
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
| CALMARK CORP., Appellant, -against- AGAPE MEDICAL CARE, P.C. and ADELINE LOUIS CHARLES, M.D., P.C., Respondents. |
DECISION
Motion by tenants-respondents for an enlargement of time to submit a respondent's brief granted and said brief shall be served and filed within 21 days from the date of the order hereon. Landlord-appellant, if it be so advised, may serve and file a reply brief within 14 days of the date of the filing of the respondent's brief.
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
| HUGH J. SNEDDON, Respondent, -against- HELENA GREENE and LAWRENCE GREENE, Appellants, -and- "JOHN DOE" and "JANE DOE", Undertenants. |
DECISION
Motion by landlord-respondent to dismiss appeal for failure to prosecute and for alternative relief is denied on condition that the appeal is perfected by October 1, 2004; otherwise motion granted and appeal dismissed.