SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
March 17, 2011
HELENE K. TOBIN,
BEAARO, INC., DOING BUSINESS AS AND ALSO KNOWN AS CLEAN-O-RAMA DRY CLEANERS,
JOHN DOES #1-5, UVW CORP. AND XYZ CORP.,
Appeals from orders of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), dated January 23, 2009 and April 22, 2009, respectively.
Tobin v Beaaro, Inc.
Decided on March 17, 2011
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ
The order dated January 23, 2009 granted a motion by tenant to enforce a stipulation of settlement by (1) directing landlord to turn over a security deposit, (2) directing landlord to execute and tender stipulations of discontinuance in three other pending actions, (3) directing landlord to tender an executed general release, and (4) awarding legal fees to tenant. The order dated April 22, 2009 denied landlord's motion for leave to renew tenant's motion.
ORDERED that the order dated January 23, 2009 is reversed, without costs, and tenant's motion is denied; and it is further,
ORDERED that the appeal from the order dated April 22, 2009 is dismissed as moot.
In this commercial holdover summary proceeding, landlord, tenant and various nonparties entered into a lengthy agreement (a two-attorney so-ordered "stipulation of settlement") in July 2007, which provided, among other things, that landlord would be awarded a final judgment of possession; that landlord would return tenant's security deposit; and that the parties to the stipulation would execute discontinuances of three other pending actions involving those parties as well as general releases of liability. A final judgment awarding landlord possession was entered on July 19, 2007. About a year later, tenant moved to enforce the stipulation by (1) directing landlord to turn over the security deposit; (2) directing landlord to execute and tender stipulations of discontinuance in the three other pending actions; (3) directing landlord to tender an executed general release; and (4) awarding tenant legal fees. Landlord opposed the motion. By order dated January 23, 2009, the Civil Court granted tenant's motion. Landlord subsequently moved for leave to renew tenant's motion. By order dated April 22, 2009, the Civil Court denied landlord's motion. Landlord appeals from both orders.
As a general rule, "[e]xcept for proceedings for the enforcement of housing standards (CCA 110 [a] ; 203 [o]) and applications for certain provisional remedies (CCA 209 [b]), the New York City Civil Court may not grant injunctive relief" (Topaz Realty Corp. v Morales, 9 Misc 3d 27, 28 [App Term, 2d & 11th Jud Dists 2005] [internal quotation marks omitted]; see also Green v Lakeside Manor Home for Adults, Inc., 30 Misc 3d 16 [App Term, 2d, 11th & 13th Jud Dists 2010]; Jiskra v Canesper, 21 Misc 3d 129[A], 2008 NY Slip Op 51968[U] [App Term, 2d & 11th Jud Dists 2008]; cf. 952 Assoc., LLC v Palmer, 52 AD3d 236 ). The agreement in question included several provisions requiring injunctive power to enforce, such as directing discontinuances of other actions and the execution of releases, and the January 23, 2009 order purported to direct landlord to tender and execute discontinuances in three pending actions, and to tender an executed general release. Moreover, the agreement was signed by four individuals who were not named as parties in the summary proceeding, required various items of compliance by those individuals, and, indeed, contemplated the entry of a money judgment against those individuals in the event of noncompliance.
In view of the foregoing, we find that the Civil Court lacked jurisdiction to grant the entirety of the relief requested in tenant's motion. Accordingly, the order dated January 23, 2009 is reversed and the motion by tenant is denied. As that order is reversed, the appeal from the April 22, 2009 order is dismissed as moot.
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 17, 2011
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