DIALLO v. GRAND BAY ASSOCIATES ENTERPRISES INC (2009)

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered December 16, 2008, which, in a declaratory judgment action involving the ownership of a condominium unit, inter alia, denied plaintiff's motion to stay, pending resolution of this action, an eviction proceeding brought by defendant against plaintiff in Civil Court, unanimously reversed, on the law and the facts, with costs, and the stay granted.

Plaintiff claims that defendant's principal and the latter's attorney defrauded him into conveying the condominium apartment in which he has resided since 1994.   The sole issue on this appeal is whether Supreme Court should have granted plaintiff's motion for a stay of the eviction proceeding brought by defendant against plaintiff in Civil Court.   Although defendant opposed plaintiff's application in this Court for a stay pending determination of this appeal, an application that was granted on condition that plaintiff perfect his appeal for the March 2009 Term (2008 Slip Op. 90079(U), 2008 WL 4977467 [Nov. 25, 2008];  see also 2009 N.Y. Slip Op. 61625(U), 2009 WL 139652 [Jan. 22, 2009] ), defendant has not submitted a response to the brief submitted by plaintiff.   We conclude under these circumstances that a stay of the eviction proceeding, in which a warrant of eviction has been issued, should have been granted in order that any judgment in plaintiff's favor in this action not be rendered ineffectual.   The decision in this action will be conclusive of the eviction proceeding;  and the equities appear to be in plaintiff's favor (see Wendling v. 136 E. 64th St. Assoc., 128 A.D.2d 419, 421, 513 N.Y.S.2d 119 [1987] ).