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3170 Atlantic Ave. Corp. v. Jereis

Supreme Court of New York, 2d, 11th and 13th Judicial Districts

June 3, 2013

3170 ATLANTIC AVE. CORP. also known as 3170 Atlantic Avenue Corp., Appellant,
v.
Zehy JEREIS, Joseph Ratner and Atlantic Gas and Wash, LLC, Respondents. No. 2012-340 K C.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered November 7, 2011. The order denied landlord's motion, in effect, to set aside an order of the same court dated October 24, 2011 in which the court, on its own motion, had vacated an inquest marking and a default final judgment awarding landlord possession and the sum of $312,534.93 in a nonpayment summary proceeding.

Present: RIOS, J.P., PESCE and ALIOTTA, JJ.

ORDERED that the order entered November 7, 2011 is reversed, without costs, and landlord's motion, in effect, to set aside the order dated October 24, 2011 is granted.

In this commercial nonpayment summary proceeding, Judge Lisa S. Ottley, acting in her capacity as supervising judge of the Civil Court of the City of New York, Kings County, by order dated October 24, 2011, sua sponte and without notice to landlord, vacated an inquest marking and default final judgment awarding landlord possession and the sum of $312,534.93. By order entered November 7, 2011, the court denied landlord's motion, in effect, to set aside its October 24, 2011 order.

As Supervising Judge Ottley had no motion pending before her to set aside the inquest marking and default final judgment, she lacked the authority to grant that relief ( see Balogh v. H.R.B. Caterers, 88 A.D.2d 136, 143-144 [1982]; cf. CPLR 5015[c] [which provides that an administrative judge is authorized to institute a proceeding to vacate certain groups of default judgments upon appropriate notice to the parties] ). Accordingly, the order dated November 7, 2011 is reversed and landlord's motion, in effect, to set aside the October 24, 2011 order is granted.

RIOS, J.P., PESCE and ALIOTTA, JJ., concur.


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