Tibta v. 156 E 21 LLC, 2025 NY Slip Op 25064 (2025)

Citation: Tibta v. 156 E 21 LLC, 2025 NY Slip Op 25064 (2025)
Parent Document: Tibta v. 156 E 21 LLC, 2025 NY Slip Op 25064 (2025)
Jurisdiction: New York (state)
Effective Date: 2025-03-18
Original Source: https://www.courtlistener.com/opinion/10360937/tibta-v-156-e-21-llc/ ↗

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No Requirement to File Concomitant CPLR 5519 Motion with Notice of AppealIn Newmont Properties v Callendar, id., the landlord argued, as does respondent herein, that the tenant's motion for an undertaking pending the outcome of an appeal should be denied because it was not made concomitant with their filing a notice of appeal. In Callendar, this court analyzed Pauk v Pauk, 232 AD2d 386 (2d Dept 1996), cited by respondents, and found that it was not controlling under the facts and circumstances of that residential holdover proceeding. Pauk involved family law and domestic relations issues. No reported decision, appellate or otherwise, cites to Pauk for the proposition that strict interpretation of CPLR 5519 (a) (6) requires a motion for an undertaking be filed simultaneously with a notice of appeal. The Second Department has widely cited to Pauk, but only for propositions involving marital property and equitable distribution, not undertakings in the residential landlord-tenant law context. Only one distinguishable reported trial court decision, Vintage Flooring & Tile, Inc. v DCM of NY LLC, 44 Misc 3d 1229(A), 2014 NY Slip Op 51376(U) (Sup Ct, Kings County 2014), cites to Pauk. Citing to Pauk and Tencza v Hyland, 149 Misc 2d 403 (Sup Ct, Oneida County 1990) in a footnote,[FN2]
the Vintage Flooring & Tile court held that an undertaking was "ineffective," not due to untimeliness of a motion pursuant to CPLR 5519 (a) (6), but because, even if the undertaking was timely posted, "respondent has not demonstrated any proof that the [u]ndertaking was ever filed with the clerk of the court pursuant to CPLR 2505," a wholly separate procedural requirement.[FN3]
(Vintage Flooring, *2 n 5 (emphases added].) Here, as in Callendar, the court is not persuaded 
by petitioner's argument that respondents were required to simultaneously move the court 
for an undertaking when they filed their notice of appeal.

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