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Gerald P. Halpern As Executor of the Estate of Fred Ziess and Mautner-Glick Corporation, Respondents v. Mark Tunne

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


December 18, 2012

GERALD P. HALPERN AS EXECUTOR OF THE ESTATE OF FRED ZIESS AND MAUTNER-GLICK CORPORATION, RESPONDENTS, --
v.
MARK TUNNE, APPELLANT, -AND- JOSHUA "DOE," "JOHN DOE" AND "JANE DOE," UNDERTENANTS.
MAUTNER-GLICK CORPORATION AND GERALD P. HALPERN AS EXECUTOR OF THE ESTATE OF FRED ZIESS,
RESPONDENTS, --
MARK TUNNE, APPELLANT, -AND- JOSHUA COHEN, "JOHN DOE" AND "JANE DOE," UNDERTENANTS.

Appeals from orders of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), dated June 25, 2010.

Halpern v Tunne

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The orders, in separate holdover summary proceedings, denied tenant's motions to dismiss the respective petitions pursuant to CPLR 3404 and for an award of attorney's fees. The appeals were transferred to this court by decision and order of the Appellate Division, Second Department, dated May 17, 2011.

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the orders are affirmed, without costs.

In these two holdover summary proceedings, tenant moved pursuant to CPLR 3404 to dismiss the petitions as "abandoned." Tenant also sought an award of attorney's fees in each proceeding. The Civil Court denied the motions, and we affirm.

The Appellate Division, Second Department, has held that CPLR 3404 does not apply to Civil Court cases (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 [2007]). We recognize that, in Kaufman v Bauer (36 AD3d 481 [2007]), decided four months before Chavez was decided, the Appellate Division, First Department, reviewed a CPLR 3404 dismissal by the New York City Civil Court on the merits. Nevertheless, the doctrine of stare decisis requires trial courts in the First Department to follow precedents set by the Appellate Division of another judicial department until the Court of Appeals or the Appellate Division, First Department, pronounces a contrary rule (Mountain View Coach Lines v Storms, 102 AD2d 663 [1984]). Accordingly, we find that, under Chavez, the branches of tenant's motions seeking to dismiss the respective proceedings were properly denied. In any event, there has been no demonstration that these proceedings had been "marked off" or stricken from the calendar, or that they were unanswered at the clerk's calendar call (see CPLR 3404). Indeed, the only thing that has been established is that the proceedings were not tried because the judge to whom they had been assigned had elected not to conduct a trial once she had ordered the entry of a final judgment of possession in landlords' favor in another holdover proceeding. Accordingly, even if tenant's motions were proper pursuant to CPLR 3404, the branches of the motions seeking to dismiss the respective petitions were properly denied because tenant had not established that the proceedings had been abandoned.

The Civil Court also properly denied the branches of tenant's motions seeking attorney's fees, as tenant did not submit a copy of the lease to demonstrate his entitlement to those fees (see Evans v Tracy, 34 Misc 3d 152[A], 2012 NY Slip Op 50307[U] [App Term, 9th & 10th Jud Dists 2012]; Henry v Simon, 24 Misc 3d 132[A], 2009 NY Slip Op 51369[U] [App Term, 9th & 10th Jud Dists 2009]). In any event, tenant's application for attorney's fees was, essentially, based upon his argument that these proceedings should be dismissed for failure to prosecute, which argument this court has rejected. Accordingly, the orders are affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: December 18, 2012

20121218

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