APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

Motion by appellant for stay denied without prejudice to appellant seeking a stay in the court below pursuant to CPLR 5519 (a) (6).

Landlord commenced this summary proceeding after purchasing the building on December 18, 2003 in a tax foreclosure sale. The court below pursuant to a motion for summary judgment, awarded landlord possession. With respect to the eleven appellants who are named in the proceeding only as John and Jane Doe, we find that they have shown arguable merit to their appeal as to whether landlord exercised due diligence in order to ascertain the identities of these occupants as required by CPLR 1024 in order for landlord to proceed against unknown necessary parties.

However, with regard to setting a proper amount for use and occupancy, this court lacks a sufficient basis upon which to determine a fair amount. Thus, the appellant is directed to apply to fix an undertaking pursuant to CPLR 5519(a)(6) in the court below. In setting use and occupancy, the court should consider not only the fair market value in a comparable apartment but also should consider whether the landlord is providing the appellants with appropriate services or whether the appellants are providing these services for themselves.

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

Motion by appellant for stay denied without prejudice to appellant seeking a stay in the court below pursuant to CPLR 5519 (a) (6).

Landlord commenced this summary proceeding after purchasing the building on December 18, 2003 in a tax foreclosure sale. The court below pursuant to a motion for summary judgment, awarded landlord possession. With respect to the eleven appellants who are named in the proceeding only as John and Jane Doe, we find that they have shown arguable merit to their appeal as to whether landlord exercised due diligence in order to ascertain the identities of these occupants as required by CPLR 1024 in order for landlord to proceed against unknown necessary parties.

However, with regard to setting a proper amount for use and occupancy, this court lacks a sufficient basis upon which to determine a fair amount. Thus, the appellant is directed to apply to fix an undertaking pursuant to CPLR 5519(a)(6) in the court below. In setting use and occupancy, the court should consider not only the fair market value in a comparable apartment but also should consider whether the landlord is providing the appellants with appropriate services or whether the appellants are providing these services for themselves.

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

Motion by appellant for stay denied without prejudice to appellant seeking a stay in the court below pursuant to CPLR 5519 (a) (6).

Landlord commenced this summary proceeding after purchasing the building on December 18, 2003 in a tax foreclosure sale. The court below pursuant to a motion for summary judgment, awarded landlord possession. With respect to the eleven appellants who are named in the proceeding only as John and Jane Doe, we find that they have shown arguable merit to their appeal as to whether landlord exercised due diligence in order to ascertain the identities of these occupants as required by CPLR 1024 in order for landlord to proceed against unknown necessary parties.

However, with regard to setting a proper amount for use and occupancy, this court lacks a sufficient basis upon which to determine a fair amount. Thus, the appellant is directed to apply to fix an undertaking pursuant to CPLR 5519(a)(6) in the court below. In setting use and occupancy, the court should consider not only the fair market value in a comparable apartment but also should consider whether the landlord is providing the appellants with appropriate services or whether the appellants are providing these services for themselves.

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

Motion by appellant for stay denied without prejudice to appellant seeking a stay in the court below pursuant to CPLR 5519 (a) (6).

Landlord commenced this summary proceeding after purchasing the building on December 18, 2003 in a tax foreclosure sale. The court below pursuant to a motion for summary judgment, awarded landlord possession. With respect to the eleven appellants who are named in the proceeding only as John and Jane Doe, we find that they have shown arguable merit to their appeal as to whether landlord exercised due diligence in order to ascertain the identities of these occupants as required by CPLR 1024 in order for landlord to proceed against unknown necessary parties.

However, with regard to setting a proper amount for use and occupancy, this court lacks a sufficient basis upon which to determine a fair amount. Thus, the appellant is directed to apply to fix an undertaking pursuant to CPLR 5519 (a) (6) in the court below. In setting use and occupancy, the court should consider not only the fair market value in a comparable apartment but also should consider whether the landlord is providing the appellants with appropriate services or whether the appellants are providing these services for themselves.

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

Motion by appellant for a stay is denied.