Tibta v. 156 E 21 LLC
2025 NY Slip Op 25064
Civ. Ct. NYC, Kings Cty.2025Background
- Mohamed Tibta commenced an "illegal lockout" proceeding under RPAPL § 713(10) after being ousted from his rent-stabilized apartment, seeking restoration of possession.
- After a two-day trial, the court granted Tibta judgment of possession on October 30, 2024; a warrant of eviction against 156 E 21 LLC and Ammar Omar was issued February 4, 2025.
- Respondents (156 E 21 LLC and Ammar Omar) filed a notice of appeal and now move for a stay of enforcement pending appeal, invoking CPLR 5519(c) (discretionary stay) or, alternatively, CPLR 5519(a)(6) (automatic stay upon posting an undertaking).
- Respondents argue that without a stay, Omar and family would be rendered homeless, while Tibta argues respondents delayed requesting an undertaking and cannot show sufficient harm or merit on appeal.
- The court must determine if a stay is warranted and, if so, the proper value of an undertaking for use and occupancy during the appeal period, given the lack of direct financial loss to Tibta.
Issues
| Issue | Tibta’s Argument | 156 E 21 LLC/Omar’s Argument | Held |
|---|---|---|---|
| Whether a stay pending appeal should be granted | Respondents haven’t shown merit on appeal or harm | Will suffer homelessness if denied; tenant pays rent | Stay granted only with an undertaking |
| Whether motion for undertaking must be simultaneous | Delay in requesting undertaking precludes automatic stay | No requirement; can seek undertaking after notice of appeal | No simultaneity required; motion is timely |
| Calculation of appropriate undertaking | No quantifiable loss to Tibta, so no monetary undertaking | Should be equitable, could be non-monetary or based on rent | Set at $1,600/month (fair value of use by respondents) |
| Applicability of CPLR 5519(a)(6) in lockout proceedings | Not the typical use-case, no automatic application | Applies here; undertaking protects party out of possession | Applicable; undertaking must be set |
Key Cases Cited
- De Camp v. Bullard, 159 N.Y. 450 (Undertakings for stay should reflect value of use and occupancy to trespassers where no direct loss shown)
- Pauk v. Pauk, 232 A.D.2d 386 (Requirement for simultaneous filing of notice of appeal and undertaking inapplicable in landlord-tenant context)
- City of New York v. Utsey, 185 Misc. 2d 715 (App. Term 2d Dep’t 2000) (Value to party in possession guides undertaking in absence of owner's loss)