440 LLC v. REDACTED WHITE PLAINS NEW YORK 10604 (2026)

In this holdover summary proceeding, the Court issued a post-hearing Decision and Order, dated July 1, 2026, finding that Respondent-Tenant, Douglas Lehman, materially breached the terms of a So Ordered Stipulation of Settlement, and granted Petitioner-Landlord a judgement of possession and warrant of eviction for the subject premises ([REDACTED], White Plains, NY).

On or about July 13, 2026, Respondent-Tenant filed a Notice of Appeal.

Now, via an Order to Show Cause, Respondent-Tenant seeks (1) to vacate the Court's Decision and Order dated July 1, 2026, along with the final judgment of possession and warrant of eviction pursuant to CPLR 5015(a) and RPAPL 749(3); or (2) an automatic stay of execution pursuant to CPLR 5519(a)(6).

Petitioner-Landlord opposes in a Counter Order to Show Cause and argues (1) Respondent has not provided a valid basis to vacate the Court's Decision and Order; (2) the amount of the undertaking set pursuant to CPLR 5519(a)(6) should be $180,334.65, which must be paid to the Clerk of the Court; and (3) the stay under CPLR 5519(a)(6) should be vacated because Respondent-Tenant has continued to violate the stipulation of settlement, is acting in bad faith, and now also harbors a dog in violation of lease terms in his apartment.

Upon review of the parties' submissions  ¹ , Respondent-Tenant's motion to vacate is denied; the automatic stay subject to the posting of an undertaking in the amount of $97,363.65 is granted pursuant to CPLR 5519(a)(6); and Petitioner-Landlord's motion to vacate the stay is denied without prejudice.

Motion to Vacate

Respondent-Tenant cites to CPLR 5015(a) and RPAPL 749(3) in moving to vacate the Court's July 1, 2026 Decision and Order, and the judgment of possession and warrant of eviction. Although CPLR 5015(a) is invoked, Respondent-Tenant's motion does not identify the paragraph under which vacatur is warranted and posits no argument concerning that statute.² Instead, Respondent-Tenant's argument focuses entirely on RPAPL 749(3), which empowers the court to stay or vacate a warrant of eviction "for good cause shown prior to the execution thereof."

On that front, Respondent-Tenant merely rehashes arguments that were rejected by the Court in its July 1, 2026 Decision and Order. Even acting pro se, the stipulation was not inadvisedly entered into.³ It provided Mr. Lehman with the ability to remain in the apartment without proceeding to trial, and Mr. Lehman successfully negotiated the removal of late fees. Moreover, as explained in the July 1, 2026 Decision and Order, Mr. Lehman's actions were a material breach of all terms of the stipulation, which required Mr. Lehman to cease smoking or permitting others to smoke in the apartment (the original basis for the holdover petition), to pay rent and additional rent in the amount of $14,863.86 by March 11, 2026 (which covered the term of the holdover period), and to "pay all appropriate charges under the lease during the term of this stipulation." The Court credited the Petitioner-Landlord's witnesses (over Mr. Lehman) and found that smoking continued in the apartment—in direct violation of the stipulation.

Further, contrary to Respondent-Tenant's continued assertions, the original sum that Mr. Lehman agreed to pay via the stipulation did not tack on previously paid late fees, and the sum belatedly offered by Mr. Lehman ($11,500) did not even rise to the level of full base rent for the holdover period ($13,056). Mr. Lehman purposefully deducted nearly every late payment fee he paid to the landlord over the life of his tenancy and then also deducted a fee he never paid: the $856 legal charge for filing the holdover petition. Moreover, Mr. Lehman acknowledged in his testimony that he did not attempt to tender any additional payments after the March 14, 2026 tender was rejected, including April rent.

In sum, Respondent-Tenant has not demonstrated "good cause" to vacate the warrant of eviction pursuant to RPAPL 749(3) and has not provided any basis under CPLR 5015(a) to vacate the Court's July 1, 2026 Decision and Order. Accordingly, Respondent-Tenant's motion to vacate is DENIED.

Stay Pending Appeal

The Court's July 1, 2026 Decision and Order, which is being appealed by Respondent-Tenant, awards possession of real property to the Petitioner-Landlord and eviction of Respondent-Tenant. Respondent-Tenant argues that a stay of that Decision and Order is required under CPLR 5519(a)(6), pending appeal, upon the posting of an undertaking set by the Court. According to Respondent-Tenant, the undertaking should be set at the amount of monthly rent. During oral argument, Respondent-Tenant acknowledged that it should also include other fees that are due under the terms of the lease, including parking, parking tax, amenity fees, and water and electric charges (which varies in amount according to usage).⁴ Respondent-Tenant also argues that the ongoing-use and occupancy should be paid directly to the landlord on a monthly basis, rather than be posted with the Clerk of the Court.

Petitioner-Landlord does not contest the automatic nature of a stay pending appeal under CPLR 5519(a)(6) upon the posting of an undertaking set by the Court. Rather, Petitioner-Landlord argues that the full undertaking must be posted with the Clerk of the Court (not paid on a monthly basis by tenant to the landlord). Additionally, Petitioner-Landlord argues that the undertaking should be set at the full amount of arrears and other charges due as of August 1, 2026, which totals $41,524.65, plus the rent and charges that will come due during the length of the appeal.⁵ Respondent-Tenant notes that those charges total at least $4,627 monthly,⁶ and with an anticipated length of two and a half years for an appeal to be resolved, calculates an additional $138,810 to be added to the undertaking. In total, Respondent-Tenant contends that the undertaking should be set at $180,334.65.

As pertinent here, CPLR 5519(a)(6) provides as follows:

(a) Stay without court order. Service upon the adverse party of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from pending the appeal or determination on the motion for permission to appeal where:

(6) the appellant or moving party is in possession or control of real property which the judgment or order directs be conveyed or delivered, and an undertaking in a sum fixed by the court of original instance is given that the appellant or moving party will not commit or suffer to be committed any waste and that if the judgment or order appealed from, or any part of it, is affirmed, or the appeal is dismissed, the appellant or moving party shall pay the value of the use and occupancy of such property, or the part of it as to which the judgment or order is affirmed, from the taking of the appeal until the delivery of possession of the property;

The setting of an undertaking by the court pursuant to CPLR 5519(a)(6) has been described as "mandatory and ministerial." Newman Properties LP v Callendar, 86 Misc 3d 397, 404 (Civ Ct Kings Co 2025). Upon the filing of the undertaking and any required affidavits with the clerk of the court, and service of the same upon the adverse party, the stay is effectuated. See CPLR 2505; Jennings v City of Glen Falls Indus Dev Agency, 9 AD3d 773, 774 (3d Dept 2004); Gur Associates LLC v Convenience on Eight Corporation, 83 Misc 3d 903, 909 (Civ Ct NY Co 2024).

In this matter, Respondent-Tenant filed a Notice of Appeal, and on the same day, sought an automatic stay under CPLR 5519(a)(6). The stay is not discretionary, and it does not depend on a showing that the appeal has merit. Matter of City of New York, 62 Misc 3d 974, 978 (Sup Ct Kings Co 2019). The Court is simply required to fix an amount for the undertaking that will protect "an owner of property from any waste that may be committed by the tenant and ensuring that they can recover use and occupancy." Id. at 977; see also Ar-Rahman Foundation Inc v Millat Found Inc, 66 Misc 3d 1228(A), at *2, 2020 NY Slip Op 50303(U) (Civ Ct NY Co 2020) (an undertaking is meant to "prevent the landlord from suffering further loss pending appeal"); Andrada Owners Corp v DiGrazia, 38 Misc 3d 1219(A), at *3, 2013 NY Slip Op 50153(U) (Civ Ct NY Co 2013) (same).

Further, Petitioner-Landlord correctly asserts that an "undertaking" is a "sum fixed by the court" (CPLR 5519(a)(6)), which must be "filed with the clerk of the court." CPLR 2505. Money paid directly to the opposing party is not an undertaking within the meaning of CPLR 2505 and 5519(a)(6). See Du Jack v Du Jack, 243 AD2d 908, 909 (3d Dept 1997) (temporary spousal support paid during pendency of appeal did not constitute an undertaking). Accordingly, an undertaking must take the form of a lump sum payment or surety delivered to the Clerk of the Court. See Gur Associates LLC, 83 Misc 3d at 909; EZ-CR Corp v CR Restaurant Rt 97 Corp, 39 Misc 3d 254, 255 (Sullivan County Ct 2012); CPLR 2501.

While the Court is aware that several trial level decisions have ordered the payment of an undertaking to the court (typically consisting of the current arrears, any disputed difference in the fair market value, and any additional money judgment) accompanied by on-going payments of undisputed use and occupancy directly to the landlord during the length of the appellate process, those decisions do not directly address whether CPLR 5519(a)(6) permits an undertaking to take the form of payments to a landlord. See generally 806 Seneca Avenue Associates LLC v King, 87 Misc 3d 1216(A), 2025 NY Slip Op 51587(U) (Civ Ct Queens Co 2025); BP 510 Madison LLC v Prosiris Capital Management LLC, 66 Misc 3d 1210(A), 2020 NY Slip Op 50047(U) (Civ Ct NY Co 2020); Ar-Rahman Foundation Inc, 66 Misc 3d 1228(A) at *2; APF 286 MAD LLC et al v RIS Real Properties Inc, et al, 43 Misc 3d 1203(A), 2014 NY Slip Op 50485(U) (Civ Ct NY Co 2014); Andrada Owners Corp, 38 Misc 3d 1219(A) at *3.⁷

AK Estates v 454 Cent Corp LLC, 32 Misc 3d 1233(A), 2011 NY Slip Op 51568(U) (Nassau Dist Ct, 1st Dist 2011) is the one published decision the Court was able to locate that discusses the mechanism for contemporaneously altering the undertaking under CPLR 5519(a)(6) to include ongoing use and occupancy payments directly to the landlord. That decision relied upon CPLR 2201, which authorizes the court to issue discretionary stays upon terms it deems just. CPLR 5519(a)(6) is automatic, however, not discretionary. Further, as at least one court has found, the discretionary ability in CPLR 5519(c) to modify or vacate an automatic stay under CPLR 5519(a)(6) "presupposes that a stay has already been procured." Matter of Oleck v Pearlman, 49 Misc 2d 202, 203 (Sup Ct Kings Co 1966). Since the undertaking must be set and posted before a stay under CPLR 5519(a)(6) is effectuated, modification cannot be contemporaneous with setting the undertaking.

Even if this Court has discretion to modify the terms of the stay, given the history of this proceeding, the Court declines to exercise its discretion under CPLR 2201 (or CPLR 5519(c)) at this time. As established at the hearing, Respondent-Tenant materially breached every promise he made under the terms of the stipulation to induce the landlord to cease eviction proceedings (which commenced based on alleged smoking in the apartment). The Court credited the testimony of Petitioner-Landlord's witnesses—over Mr. Lehman—to find that the smoking of cigarettes continued in Mr. Lehman's apartment despite the stipulation's requirement that it cease. Further, the evidence indisputably established that Mr. Lehman did not pay the sum agreed to in the stipulation ($14,863.86). He didn't even tender the base rent component of that sum by the agreed upon payment date. Base rent for January through March 2026 amounted to $13,056 ($4,352 x 3). Mr. Lehman only attempted to tender $11,500 and did not do so until three days after the deadline. As held in the July 1, 2026 decision, it is clear that Mr. Lehman unilaterally removed all payments above base rent, and then reduced the base rent in order to recoup every late payment he previously tendered while a tenant, and further reduced it by the amount Petitioner-Landlord sought for legal fees (which he never paid). This was far from a good faith attempt to comply with the stipulation. Respondent-Tenant's representation in his instant motion that he proffered "full payment of base rent" (Behar Aff., ¶ 17) is belied by the record and untrue. Whether an appeal has merit is a factor for courts to consider in a discretionary stay. Here, that factor weighs against exercising discretion to modify the terms of the mandated stay under CPLR 5519(a)(6).

Additionally, a court should consider the equities of the parties in granting a discretionary stay or modifying the terms of a stay. See Tibta v 156 E. 21 LLC, 87 Misc 3d 343, 349 (Civ Ct Kings Co 2025). In this matter, Respondent-Tenant has only lived in the subject premises since September 2023. His current lease is set to expire on September 14, 2027 (a little over a year from now), and there is no indication that he would be homeless if he could not remain in this apartment. Petitioner-Landlord, in contrast, will suffer prejudice because the length of the stay pending appeal will likely extend past the expiration of the current lease, at which point Petitioner-Landlord would have an independent basis to terminate Respondent-Tenant's tenancy.⁸ Even if the ruling granting possession to Petitioner-Landlord is affirmed after the expiration of the lease, Petitioner-Landlord will not be able to obtain any benefit from this Court's post-hearing Decision and Order terminating the tenancy prior to the lease expiration. Thus, the equities favor Petitioner-Landlord. The Court therefore declines to exercise discretion under either CPLR 2201 or CPLR 5519(c) to alter the terms of the undertaking required to be paid to the clerk of the court for an automatic stay under CPLR 5519(a)(6).

This Court is accordingly left with the task of determining the proper amount of an undertaking in this matter. Respondent-Tenant has not paid use and occupancy to Petitioner-Tenant during the holdover period, which commenced in January 2026. As of August 1, 2026, that amounts to $37,094.65 (not counting water and electric usage for August 2026). The Court reached this number by deducting legal fees ($4,080), late fees ($350), and lockout fees ($150) from the $41,674.65 ledger balance. The parties agree that going forward, use and occupancy for the subject premises should be at least $4,607 monthly ($4,352 rent + $166.08 parking + $13.92 parking tax + $75 amenity/gym fee), before water and electric usage is added. The Court will utilize the average cost of those services over the past seven months to set that expected charge at $27 monthly, bringing the full monthly use and occupancy to $4,634.

Petitioner-Landlord argues that it typically takes two and one-half years for an appeal to be resolved in the Appellate Term for the Ninth and Tenth Judicial Districts. At oral argument, Respondent-Tenant asserted the length for an appeal is shorter than two years but did not provide a counter estimate. Several decisions have found that a projection of approximately two years for the appellate process is a reasonable estimate. Tibta, 87 Misc 3d at 353 (2 years); Gur Associates LLC, 83 Misc 3d at 908 (2 years); Matter of City of New York, 62 Misc 3d 974, 979 (Sup Ct Kings Co 2019) (2.5 years). However, since Respondent-Tenant's lease will not last for another two years, this Court finds it reasonable to set an undertaking for use and occupancy only up to September 2027 (13 months).

Based on the above, the undertaking is set as follows:

Respondent-Tenant shall post the undertaking with the Clerk of the Court, in accordance with CPLR 2501(2) and 2505, in the amount of $97,363.65 cash. The posting of the undertaking shall occur within thirty (30) days from the date of this order. In addition, in accordance with CPLR 5519(a)(6), Respondent-Tenant shall not commit or suffer to be committed any waste to the subject premises. Waste includes, but is not limited to, smoking or permitting others to smoke in the subject premises.

Petitioner-Landlord may move, on appropriate notice to Respondent-Tenant, for disbursement of funds from the undertaking, as needed during the pendency of the appeal, to the extent permitted by the CPLR.

Petitioner-Respondent's motion to vacate the CPLR 5519(a)(6) stay, which has not yet been effectuated, is denied without prejudice. See Matter of Oleck, 49 Misc 2d at 203.

CONCLUSION

Based on the foregoing, it is hereby:

ORDERED that Respondent-Tenant's motion to vacate the Court's July 1, 2026 Decision and Order, judgment of possession and warrant of eviction pursuant to CPLR 5015(a) and/or RPAPL 749(3) is DENIED; and it is further

ORDERED that Respondent-Tenant's motion for a stay pursuant to CPLR 5519(a)(6) is GRANTED to the extent that the Court sets an undertaking, as defined in CPLR 2501(2), in the amount of $97,363.65; and it is further

ORDERED that Respondent-Tenant shall not commit or suffer to be committed any waste to the subject premises. Waste includes, but is not limited to, smoking or permitting others to smoke in the subject premises; and it is further

ORDERED that said undertaking shall be posted in cash with the Clerk of the Court within thirty (30) days of the date of this decision and order; and it is further

ORDERED that Respondent-Tenant shall serve a copy of the undertaking and any other materials required by CPLR 2505 on Petitioner-Landlord within five (5) days of filing the same with the Clerk of the Court; and it is further

ORDERED that upon service on Petitioner-Landlord of the materials required by CPLR 2505, all proceedings to enforce the judgment of possession, including the execution of the warrant of eviction, will be stayed from the date of service of the filed undertaking upon Petitioner-Landlord pending disposition of the appeal; and it is further

ORDERED that all temporary stays as a result of these orders to show cause are lifted; and it is further

ORDERED that Petitioner-Landlord's motion to vacate the CPLR 5519(a)(6) stay is DENIED without prejudice.

Petitioner-Landlord shall serve a copy of this decision and order upon Respondent-Tenant with notice of entry and file proof of same with the Clerk of the Court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Dated: August 21, 2026

White Plains, New York

ORDERED:

HON. MARY JO L. BLANCHARD

CITY COURT JUDGE

cc: Mark A. Guterman, Esq.

Lehrman & Guterman, LLP

199 Main Street, 4th Floor

White Plains, NY 10601

Attorney for Petitioner-Landlord

Leon I. Behar, Esq.

347 Fifth Avenue, Suite 1506

New York, NY 10016

Attorney for Respondent-Tenant

FOOTNOTES

1.   The materials reviewed include Respondent-Tenant's application for an Order to Show Cause, dated July 13, 2026, with accompanying affirmations; Petitioner-Landlord's application for a Counter Order to Show Cause, dated July 28, 2026, and accompanying affirmation and exhibits; the Affirmation of Leon I. Behar in Opposition to Petitioner's Counter-Order to Show Cause, dated August 7, 2026; August 10, 2026 oral argument of the parties; and the court file.

2.   CPLR 5015(a) contains five grounds upon which a party, on motion, can seek relief from a judgment or order:1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or3. fraud, misrepresentation, or other misconduct of an adverse party; or4. lack of jurisdiction to render the judgment or order; or5. reversal, modification or vacatur of a prior judgment or order upon which it is based.CPLR 5015(a)(1) — (5). Respondent-Tenant has not proffered any facts or argument relevant to any of the five grounds.

3.   Mr. Lehman retained Mr. Behar prior to the hearing on the alleged breach of the stipulation.

4.   During oral argument, Respondent-Tenant also noted a monthly dog fee. Petitioner-Landlord indicated that since Mr. Lehman was not granted permission to have a pet, there is currently no dog fee. Indeed, according to Petitioner-Landlord, Mr. Lehman appears to be harboring a dog in violation of the lease requirement that he obtain pre-approval for a pet.

5.   The amount of $41, 524.65 includes monthly rent, parking, tax, amenities, water and electric usage between December 20, 2025 and August 1, 2026, as well as lockout ($150) and late fees ($200), and various legal fees (totaling $4,080). It does not include $150 that had been assessed in late fees between January and March 2026, which Petitioner-Landlord indicates is the $150 that had been excluded from the March 4, 2026 Stipulation of Settlement.

6.   Monthly base rent for the subject premises is $4,352. Under the terms of the lease, Mr. Lehman is also responsible monthly for parking ($166.08), parking tax ($13.92), amenities ($75), and water and electric usage, which varies. Respondent-Tenant assessed $20 per month for water and electric charges to reach the total monthly cost for use and occupancy of the subject premises at $4,627. According to the ledger, the monthly average for water and electricity charges between January and July 2026 was $27.71.

7.   The Court also acknowledges it is not uncommon for a discretionary stay under CPLR 5519(c) to include the payment of ongoing use and occupancy to the landlord as a condition of the stay. But, as noted, the stay at issue here is not a discretionary stay under CPLR 5519(c), it is a non-discretionary stay under CPLR 5519(a)(6) that is only dependent on the posting of an undertaking fixed by the court.

8.   The building is exempt from the Good Cause Eviction Law.

Mary Jo L. Blanchard, J.