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BP 510 MADISON LLC v. XYZ (2020)

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Civil Court, City of New York.

BP 510 MADISON LLC, Petitioner-Landlord v. PROSIRIS CAPITAL MANAGEMENT LLC, Respondent-Tenant “XYZ Corp” Respondent-Undertenant.

L & T 64226/19

Decided: January 16, 2020

COZEN O'CONNOR, Attorneys for Petitioner, By: EMILY SHOOR ESQ. & AMANDA NELSON, ESQ, 45 Broadway - 16th Floor, New York, New York 10006, 914.453.3923 KISHNER MILLER HIMES P.C, Attorneys for Respondent, By: RYAN O. MILLER, ESQ, 40 Fulton Street - 12th Floor, New York, New York 10038, 212.585.3425 ext. 102


Petitioner commenced this summary holdover proceeding to recover possession of a portion of the 20th floor at 510 Madison Avenue, New York, New York 10022 (Subject Premises) based on the allegation that respondent had breached its lease by failing to make timely payments for rent and additional rent due under the parties' lease agreement.

Pursuant to a decision and order entered November 7, 2019, the court (Ramsuer, J) awarded petitioner summary judgment and entered a judgment of possession against respondent, as well as a money judgment in the amount of $1,522,413.03. The court further held that petitioner was entitled to attorneys' fees and set the matter down for a hearing on the amount of fees to be awarded on November 27, 2019.

The warrant of eviction issued on November 22, 2019.

Respondent filed a notice of appeal on December 11, 2019.

A Marshal's notice dated December 13, 2019 was served on respondent.

Petitioner has drawn down $1,300,000.00 pursuant to a letter of credit.


On January 15, 2020, respondent moved by order to show cause for an order by this court fixing an undertaking to effectuate a stay pending appeal pursuant to CPLR § 5519(a)(6). Petitioner submitted opposition and the court reserved decision.


CPLR § 5519(a)(6) governs respondent's application for a stay pending appeal and provides in pertinent part:

(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 ․

Petitioner argues that respondent's motion should be denied and no stay granted because the appeal lacks merit, but the provisions of the statute clearly provide for the stay without leave of court upon the fixing of an undertaking. A showing of merit is not required by CPLR § 5519 (a)(6) [see eg Matter of City of New York, 62 Misc 3d 974).

Respondent argues that the appropriate undertaking is $222,413.03, the amount of the judgment issued after trial less the $1,300,000.00 drawn down by petitioner on the letter of credit. Respondent also states it is willing to pay use and occupancy in the amount of $119,791.67, which it asserts is the base rent under the lease.

Petitioner asks that the undertaking be fixed in the amount of $1,564,081.26, for the judgment amount, in addition to $993,928.50 representing use and occupancy for November 2019 through January 2020, and further conditioned on ongoing use and occupancy payments of $284,979.66.

The primary difference in calculation of use and occupancy is that respondent asks that it be set at the base rent rate under the lease and petitioner asks that it be set at double that amount pursuant to Article 20.17 of the lease, which provides that if respondent remains in possession beyond the termination or expiration of the lease petitioner is entitled to double the base rent from the second month of the holdover forward.

The court agrees with petitioner that the letter of credit should not be considered as an undertaking and that respondent should not be credited towards the judgment amount based on any amounts drawn down for the letter of credit.

The court also agrees that part of the undertaking must include the use and occupancy past due for November 2019 through January 2020.

Petitioner also asserts that it has spent approximately $80,000 in attorneys fees so far, and respondent also seeks to stay the attorneys' fees hearing pending the appeal.

The court finds that the undertaking should be set at $2,638,009.70. This figure includes $80,000 for estimated fees to date, the judgment amount awarded by the court, and the $993,928.50 alleged due for the months between November 2019 and January 2020 as these sums are alleged as past due, the court will allow the undertaking to include the 200% use and occupancy for this limited period so as to account for additional rents due under the lease.

The court will also condition the stay on the payment of ongoing use and occupancy to petitioner at $119,791.67 per month, by the 5th of each month from February 2020 forward. As this sum will not be posted with the clerk, but will be paid directly to petitioner the court is not setting the amount at double the base rent pursuant to the holdover provision of the lease.

Based on the foregoing, it is

ORDERED that respondent shall post with the clerk of the court an undertaking in the amount of $2,638,009.70, cash or bond, within ten (10) days from the date of this order; and it is further

ORDERED that respondent shall serve a copy of the undertaking and notice of filing of said undertaking on petitioner's attorney within five (5) days of said filing; and it is further

ORDERED that the stay pending appeal is conditioned on payment of ongoing use and occupancy from February 2020 forward in the amount of $119,791.67.00; and it is further

ORDERED that the attorneys' fees hearing be stayed pending the appeal; and it is further

ORDERED that in the event respondent fails to comply with any of the foregoing provisions petitioner may move this court for an order vacating the stay.

Sabrina B. Kraus, J.

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