DECISION Albert Sigal and Barbara L. de Mare, executors of the will of M. Michael Kulukundis, obtained an order directing Tara Kulukundis to turn over a co-operative unit — Apartment 1107, The Pierre Hotel, 2 East 61st Street, in the County, City, and State of New York — owned by a closely-held corporation, 100 percent of the stock of which is owned by the executors, and not specifically bequeathed (see SCPA 2103), and now seek an order vacating the automatic stay of enforcement and an order of possession (see CPLR 5519 [a][6]). BackgroundOn June 15, 2018, the court granted the executors’ turnover petition, to the extent of ordering respondent Tara Kulukundis to vacate the co-operative unit by January 15, 2019. The court ruled: “If respondent fails to vacate The Pierre apartment by January 15, 2019, a warrant of eviction may issue, upon five days’ notice.”On June 25, 2018, respondent filed a notice of appeal.On December 4, 2018, the Appellate Division denied respondent’s motion for a stay of enforcement of the June 15, 2018 order (Matter of Kulukundis, 2018 NY Slip Op 89925 [U] [1st Dept]).On January 16, 2019, petitioners settled a proposed order and warrant of eviction, returnable five days thence. In addition, petitioners filed an affirmation in support.On January 17, 2019, respondent filed a proposed order to show cause with a temporary restraining order, directing petitioners to show cause why enforcement of the June 15, 2018 order was not stayed automatically, pending her appeal, subject to her posting an undertaking in a sum to be fixed by the court (see CPLR 5519 [a] [6]).On January 18, 2019, the court conducted a conference call with counsel for petitioners and counsel for respondent.On January 24, 2019, the court declined to issue petitioners’ proposed order, ruling: “This application for the issuance of an Order of Possession and an Order directing the Sheriff to place petitioners in possession is denied without prejudice to renewal upon the lifting of the automatic stay.”Also on January 24, 2019, the court rendered a decision, memorializing the information conveyed to counsel during the January 18, 2019 conference call. In relevant part, the January 24, 2019 decision reads:“Enforcement of the June 15, 2018 order would be stayed automatically, upon respondent’s posting an undertaking in an amount to be fixed by the court (see CPLR 5519 [a] [6]).”The decision ends: “Petitioners are restrained from enforcing the June 15, 2018 order pending the issuance of a further order fixing the amount of the undertaking.”On February 21, 2019, upon reading the submissions filed by counsel, the court fixed the undertaking to be given by respondent, pending determination of the appeal of the June 15, 2018 decision, in the amount of $417,421.56. The court ordered respondent to give the undertaking no later than March 5, 2019 and ruled:“ORDERED that, if respondent fails to comply with the instant order, petitioners may apply, by means of an affidavit served upon respondent’s counsel and filed with the court, for an order vacating the stay and issuing a warrant of eviction.”Instant ApplicationOn March 6, 2019, petitioners served upon respondent’s counsel and then filed with the court: (1) the affirmation of Joseph M. Weitzman, Esq., counsel for petitioners, in which he affirmed that, as of close of business on March 5, 2019, respondent had neither given an undertaking nor vacated the co-operative unit; (2) a proposed order, noticed for March 11, 2019, vacating the stay and directing the Sheriff of the County of New York, upon receipt of a certified copy of the signed order, to evict respondent, on five-days’ notice to respondent; and (3) a proposed order of possession directed to the Sheriff of the City of New York.Respondent has filed no formal response.Petitioners’ application is granted. The automatic stay of enforcement of the June 15, 2018 order having been conditioned upon respondent’s giving an undertaking (see CPLR 5519 [a] [6]), and respondent having failed to give such undertaking, the stay is lifted.This decision constitutes the order of the court.Order of possession signed.Dated: March 11, 2019
