

47 Thames Realty, LLC v Rusconi (2015 NY Slip Op 04090)





47 Thames Realty, LLC v Rusconi


2015 NY Slip Op 04090


Decided on May 13, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on May 13, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

CHERYL E. CHAMBERS, J.P.
L. PRISCILLA HALL
JEFFREY A. COHEN
ROBERT J. MILLER, JJ.


2013-08165
 (Index No. 33627/07)

[*1]47 Thames Realty, LLC, appellant, 
vPaul Rusconi, et al., respondents.


Rosenberg & Estis, P.C., New York, N.Y. (Jason R. Davidson and Dani Schwartz of counsel), for appellant.
Bierman & Palitz, LLP, New York, N.Y. (Mark H. Bierman of counsel), for respondents.

DECISION & ORDER
In a consolidated action, inter alia, for ejectment and to recover damages for use and occupancy, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated June 28, 2013, as denied its motion, among other things, for leave to enter a money judgment against each defendant for the alleged violation of certain consent orders, with leave to renew after the determination of an appeal in this consolidated action from an order of the same court dated June 27, 2012.
ORDERED that the order dated June 28, 2013, is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
The plaintiff moved, inter alia, for leave to enter a money judgment against each defendant for the alleged violation of certain consent orders which required the respective defendants to deposit payments for "use and occupancy" of certain premises into their attorneys' escrow accounts. The Supreme Court denied the plaintiff's motion with leave to renew after the determination of a then-pending appeal in this consolidated action from an order dated June 27, 2012.
Since that appeal has been determined (see 47 Thames Realty, LLC v Rusconi, 116 AD3d 657), we need not determine whether the Supreme Court properly denied the plaintiff's motion with leave to renew after the determination of that appeal. Under the particular circumstances of this case, it is appropriate for the Supreme Court to determine the merits of the plaintiff's motion in the first instance (see generally Matter of Greenberg v Assessor of Town of Scarsdale, 121 AD3d 986, 989-990).
Accordingly, we reverse the order insofar as appealed from, and remit the matter to the Supreme Court, Kings County, to determine the merits of the plaintiff's motion.
CHAMBERS, J.P., HALL, COHEN and MILLER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


