530 West 28th Street LP v. RN Realty, L.L.C.

Appeal from order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered April 23, 2012, which set use and occupancy at the rent in the lease, and denied, without prejudice, plaintiffs motion to unseal an affidavit and directed that plaintiff address the unsealing motion to the prior Justice in the case who had recused himself, unanimously dismissed, with costs, as moot.

Given that plaintiff never paid any use and occupancy and is now out of the premises, pursuant to a stipulation between the parties that also addressed the issue of use and occupancy, this appeal, as to use and occupancy is moot (see Matter of Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preserv. Commn., 2 NY3d 727, 728-729 [2004]). So too is the portion of the appeal that seeks the unsealing of an affidavit in the evidentiary proceedings relating to the setting of *409use and occupancy. Concur — Tom, J.R, Saxe, DeGrasse, Richter and Clark, JJ.