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BOOSTON LLC v. 35 W. REALTY CO., LLC

Index No. 654308/19. Appeal No. 13903. Case No. 2020-04990.

194 A.D.3d 609 (2021)

144 N.Y.S.3d 357

2021 NY Slip Op 03277

Booston LLC, Appellant, v. 35 West Realty Co., LLC, Respondent.

Appellate Division of the Supreme Court of New York, First Department.

Decided May 25, 2021.

Attorney(s) appearing for the Case

David Rozenholc & Associates, New York ( James B. Fishman of counsel), for appellant.

Rosenberg & Estis, P.C., New York ( Warren A. Estis of counsel), for respondent.

Concur—Renwick, J.P., Webber, González, Scarpulla, JJ.

The subject bond was imposed on plaintiff for the specific purpose of protecting defendant from any liability claims while the parties litigated the merits, not for the payment of pendente lite use and occupancy (see 1414 Holdings, LLC v BMS-PSO, LLC, 116 A.D.3d 641, 643-644 [1st Dept 2014]). Thus, rather than directing plaintiff's surety to pay ongoing use and occupancy from the bond, the court should have granted defendant's alternative...

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