Eversman v. Collodo

Appellate Terms of the Supreme Court of New York

Eversman v. Collodo

88 Misc. 2d 86, 388 N.Y.S.2d 542, 1976 N.Y. Misc. LEXIS 2631

Appellate Terms of the Supreme Court of New York·Decided October 27, 1976·Published·Cited by 3 cases

Opinion

Per Curiam.

Order entered April 22, 1976 (Nason, H.O.) reversed, with $10 costs, motion granted, final judgment vacated, and case remanded to the Housing Part of the Civil Court of the City of New York, County of New York, for proceedings consistent with this decision.

In this nonpayment summary proceeding, it was an improvident exercise of discretion for the court below to condition an adjournment requested by petitioner upon the payment into court by tenant of the amount prayed for in the petition, and to thereafter grant a "default” final judgment in favor of petitioner when tenant did not comply with the order of deposit. Since tenant had not made application for the continuance or otherwise sought the favor of the court, and there is no statutory provision calling for the deposit in the subject [87] circumstances, the right to litigate the merits of the case was erroneously conditioned upon prepayment of the unproven amount claimed as rent (see Hovey v Elliott, 167 US 409; Boddie v Connecticut, 401 US 371, 379; cf. Lindsey v Normet, 405 US 56, 65 with Bell v Tsintolas Realty Co., 430 F2d 474).

Concur: Hughes, P. J., Gellinoff and Riccobono, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

Order entered April 22, 1976 (Nason, H.O.) reversed, with $10 costs, motion granted, final judgment vacated, and case remanded to the Housing Part of the Civil Court of the City of New York, County of New York, for proceedings consistent with this decision.

In this nonpayment summary proceeding, it was an improvident exercise of discretion for the court below to condition an adjournment requested by petitioner upon the payment into court by tenant of the amount prayed for in the petition, and to thereafter grant a "default” final judgment in favor of petitioner when tenant did not comply with the order of deposit. Since tenant had not made application for the continuance or otherwise sought the favor of the court, and there is no statutory provision calling for the deposit in the subject [87] circumstances, the right to litigate the merits of the case was erroneously conditioned upon prepayment of the unproven amount claimed as rent (see Hovey v Elliott, 167 US 409; Boddie v Connecticut, 401 US 371, 379; cf. Lindsey v Normet, 405 US 56, 65 with Bell v Tsintolas Realty Co., 430 F2d 474).

Concur: Hughes, P. J., Gellinoff and Riccobono, JJ.

Eversman v. Collodo, 88 Misc. 2d 86, 388 N.Y.S.2d 542, 1976 N.Y. Misc. LEXIS 2631 (N.Y. Ct. App. 1976).

Pincite

88 Misc. 2d 86 (Eversman v. Collodo) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related