HP Bailey Ave., LLC v. Gilmartin

Appellate Terms of the Supreme Court of New York

HP Bailey Ave., LLC v. Gilmartin

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 29, 2018

Docket2018 NYSlipOp 51710(U)

StatusPublished

This text of HP Bailey Ave., LLC v. Gilmartin (HP Bailey Ave., LLC v. Gilmartin) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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HP Bailey Ave., LLC v. Gilmartin, (N.Y. Ct. App. 2018).

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Opinion

HP Bailey Avenue, LLC, Petitioner-Landlord-Appellant,

against

Olga T. Gilmartin, Respondent-Tenant-Appellant.

Tenant appeals from an order of the Civil Court of the City of New York, Bronx County (Miriam M. Breier, J.), dated October 12, 2017, which denied her motion to vacate a default final judgment in a holdover summary proceeding.

Per Curiam.

Order (Miriam M. Breier, J.), dated October 12, 2017, reversed, with $10 costs, motion granted, default final judgment vacated, and matter remanded to Civil Court for further proceedings on the holdover petition.

The uncontested facts establish that tenant's counsel was disbarred during the pendency of this holdover proceeding (see Matter of Bianchi, 151 AD3d 55 [2017]), resulting in an automatic stay of the proceeding until thirty days after notice to appoint another attorney was served on her (CPLR 321[c]; see Moray v Koven & Krause, Esqs., 15 NY3d 384, 388-390 [2010]; Scirica v Colantonio, 111 AD3d 571, 572 [2013]). Because there was no compliance with the notice requirements of CPLR 321(c), and the record demonstrates that tenant had not retained new counsel when the judgment was entered upon her default, that judgment must be vacated (see Moray v Koven & Krause, Esqs., 15 NY3d at 389; Duandre Corp. v Golden Krust Caribbean Bakery & Grill, 140 AD3d 481 [2016]; Galletta v Siu-Mei Yip, 271 AD2d 486 [2000]).

Landlord's protests about the delay of this nuisance holdover proceeding are unavailing. Relief from the stay was entirely in landlord's control, since "[i]t lies within the power of the other side to bring the stay to an end by serving a notice on the affected party to appoint new counsel within 30 days" (Moray v Koven & Krause, Esqs., 15 NY3d at 389 [internal quotation marks omitted]; see Soldovieri v Flack, 106 AD3d 717, 719 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 29, 2018

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HP Bailey Avenue, LLC, Petitioner-Landlord-Appellant,

against

Olga T. Gilmartin, Respondent-Tenant-Appellant.

Tenant appeals from an order of the Civil Court of the City of New York, Bronx County (Miriam M. Breier, J.), dated October 12, 2017, which denied her motion to vacate a default final judgment in a holdover summary proceeding.

Per Curiam.

Order (Miriam M. Breier, J.), dated October 12, 2017, reversed, with $10 costs, motion granted, default final judgment vacated, and matter remanded to Civil Court for further proceedings on the holdover petition.

The uncontested facts establish that tenant's counsel was disbarred during the pendency of this holdover proceeding (see Matter of Bianchi, 151 AD3d 55 [2017]), resulting in an automatic stay of the proceeding until thirty days after notice to appoint another attorney was served on her (CPLR 321[c]; see Moray v Koven & Krause, Esqs., 15 NY3d 384, 388-390 [2010]; Scirica v Colantonio, 111 AD3d 571, 572 [2013]). Because there was no compliance with the notice requirements of CPLR 321(c), and the record demonstrates that tenant had not retained new counsel when the judgment was entered upon her default, that judgment must be vacated (see Moray v Koven & Krause, Esqs., 15 NY3d at 389; Duandre Corp. v Golden Krust Caribbean Bakery & Grill, 140 AD3d 481 [2016]; Galletta v Siu-Mei Yip, 271 AD2d 486 [2000]).

Landlord's protests about the delay of this nuisance holdover proceeding are unavailing. Relief from the stay was entirely in landlord's control, since "[i]t lies within the power of the other side to bring the stay to an end by serving a notice on the affected party to appoint new counsel within 30 days" (Moray v Koven & Krause, Esqs., 15 NY3d at 389 [internal quotation marks omitted]; see Soldovieri v Flack, 106 AD3d 717, 719 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 29, 2018

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