The court has considered the following submissions:Submission: Date Filed:1. Petitioners’ proposed order and warrant of eviction, together with a notice of settlement January 16, 20192. Affirmation of Joseph M. Weitzman, Esq., in support January 16, 20193. Respondent’s proposed order to show cause with temporary restraining order, for an automatic stay of enforcement, pursuant to CPLR 5519 (a) (6) January 17, 20194. Affirmation of David Rabinowitz, Esq., in support of respondent’s proposed order to show cause January 17, 20195. Affirmation of David Rabinowtiz, Esq., entitled, “Emergency Affirmation” January 17, 20196. Affirmation of Alexandra P. Kolod, Esq., in support of respondent’s proposed order to show cause January 17, 2019DECISION The court has been presented with competing applications in the proceeding commenced by Albert Sigal and Barbara L. de Mare, executors of the will of M. Michael Kulukundis, for turnover of a co-operative unit, Apartment 1105-11, at The Pierre Hotel in Manhattan (see SCPA 2103). The apartment is owned by a closely-held corporation, 100 percent of the stock of which is owned by the executors and is not specifically bequeathed.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]).Instant ApplicationsOn January 16, 2019, petitioners, executors of decedent’s will, 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 is 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. During the conference call, counsel agreed that the motion filed by respondent in the Appellate Division-and which the Appellate Division denied-was for a discretionary stay.As the court informed counsel during the conference call:(1) The denial of a discretionary stay does not preclude a motion for an automatic stay (see Pan American World Airways v. Overseas Raleigh Mfg., 49 NY2d 780 [1980]; Corcillo v. Martut, Inc., 43 NY2d 792 [1977]; Rubin v. Rubin, 305 AD2d 198, 199 [1st Dept 2003]).(2) For purposes of CPLR 5519 (a) (6), a co-operative apartment is deemed real property (see Baranello v. 700 Shore Rd. Waters Edge, 159 Misc 2d 1040 [Sup Ct, Nassau County 1993]; Andrada Owners Corp. v. DiGrazia, 38 Misc 3d 1219 [A] [Civ Ct, New York County 2013]). And(3) 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 court directed petitioners’ counsel to file by January 25, 2019, an affidavit, sworn to by a person with personal knowledge, as to the appropriate amount of an undertaking, taking into account, at a minimum, the cost of maintaining the co-operative unit and any interest the executors may be required to pay-commencing on January 16, 2019-pursuant to a contract for the sale of the co-operative unit. The court permitted respondent to file a responsive submission by January 30, 2019.Petitioners are restrained from enforcing the June 15, 2018 order pending the issuance of a further order fixing the amount of the undertaking.This decision constitutes the order of the court.Dated: January 24, 2019
