SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
December 23, 2011
AND "JOHN DOE" AND "JANE DOE",
Appeal from an order of the Civil Court of the City of New York, Richmond County (Marina Mundy, J.), dated February 18, 2011.
Keita v Ottman
Decided on December 23, 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This opinion is uncorrected and will not be published in the printed Official Reports.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., GOLIA and STEINHARDT, JJ
The order denied landlord's motion to restore the proceeding to the calendar for the purpose of scheduling an inquest against "John Doe" and "Jane Doe," and granted tenant's oral motion to, in effect, vacate the final judgment entered against her and to dismiss the petition as against her.
ORDERED that so much of the appeal as is from the portion of the order granting tenant's oral motion to, in effect, vacate the final judgment entered against her and to dismiss the petition as against her is dismissed; and it is further,
ORDERED that the order, insofar as reviewed, is affirmed, without costs.
In this holdover summary proceeding converted by stipulation to a nonpayment summary proceeding, the parties, on December 20, 2010, entered into a further stipulation pursuant to which a final judgment was entered awarding landlord possession and the principal sum of $9,001 against tenant Sara Ottman, with the issuance of the warrant stayed until January 20, 2011 for payment. Thereafter, landlord unsuccessfully sought to obtain a warrant, first by application for an order to show cause and then by application to the marshal. The marshal rejected the application on several grounds, including that an inquest was necessary with respect to "John Doe" and "Jane Doe." Landlord then moved to restore the proceeding to the calendar for the purpose of scheduling an inquest with respect to "John Doe" and "Jane Doe," incorrectly claiming that there was a warrant on file. The Civil Court found that the final judgment had been satisfied and denied landlord's motion. Upon an oral motion by tenant, the court vacated the final judgment entered against her, purported to vacate a warrant and dismissed the petition as against her.
With respect to tenant's oral motion, no appeal as of right lies from
an order or part of an order which does not decide a motion made on
notice, and the subject oral motion, although apparently not ex parte,
was not made on notice (see CCA 1702 [a] ). A motion on notice is
made when an order to show cause or notice of motion is served (CPLR
2211; 1223 Bushwick, LLC v Williams, 19 Misc 3d 128[A], 2008 NY Slip
Op 50512[U] [App Term, 2d & 11th Jud Dists 2008]; Cucaj v Paramount Fee, L.P., 17 Misc 3d
130[A], 2007 NY Slip Op 51976[U] [App Term, 2d
& 11th Jud Dists 2007]). Accordingly, as leave to appeal has not been
granted, so much of the appeal as is from the portion of the order granting
tenant's oral motion to, in effect, vacate the final judgment entered against
her and to dismiss the petition as against her is dismissed.
Landlord did not allege, in support of his motion, that tenant had not satisfied the monetary portion of the judgment. Indeed, the court stated that the judgment had been satisfied on December 29, 2010, well before the deadline set forth in the stipulation, and landlord has not argued that this was incorrect. Consequently, as the record indicates that the final judgment in this nonpayment proceeding had been satisfied prior to the issuance of the warrant, the court properly denied landlord's motion to restore the matter to the calendar (see Clark v Williams, 149 Misc 2d 945 [App Term, 2d & 11th Jud Dists 1991]).
Accordingly, the order, insofar as reviewed, is affirmed.
Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2011
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