Feierstein v. Moser

Appellate Division of the Supreme Court of New York

Feierstein v. Moser

306 A.D.2d 27, 759 N.Y.S.2d 666, 2003 N.Y. App. Div. LEXIS 6181

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 3, 2003

StatusPublished

Cited by2 cases

This text of 306 A.D.2d 27 (Feierstein v. Moser) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Feierstein v. Moser, 306 A.D.2d 27, 759 N.Y.S.2d 666, 2003 N.Y. App. Div. LEXIS 6181 (N.Y. Ct. App. 2003).

Pincite

Opinion

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered on or about June 24, 2002, which, in an action by a landlord against a tenant for a declaration that the tenant violated the lease by making alterations to the premises without obtaining the landlord’s consent and necessary permits, an injunction compelling the tenant to restore the premises to their original condition, and attorneys’ fees, denied the landlord’s motion to retransfer the action from Civil Court to Supreme Court pursuant to CPLR 325 (b), unanimously modified, on the law, to retransfer the cause of action for a declaratory judgment, and otherwise affirmed, without costs.

The action should not have been transferred to Civil Court [28]*28pursuant to CPLR 325 (d) since the primary relief sought, a declaratory judgment, is not within that court’s subject matter jurisdiction (see Lex 33 Assoc. v Grasso, 283 AD2d 272 [2001]). Accordingly, we retransfer that cause of action to Supreme Court pursuant to CPLR 325 (b) (see Zuckermann v Spector, 287 AD2d 402 [2001]). Neither the landlord’s failure to appeal the CPLR 325 (d) order, nor his delay in seeking a retransfer, during which, we note, the case was active, requires retention of the action in Civil Court (see id.). We decline to retransfer the causes of action for an injunction and attorneys’ fees since those causes of action are within Civil Court’s jurisdiction and have been dismissed. Concur — Andrias, J.P., Saxe, Ellerin, Lerner and Friedman, JJ.

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—Order, Supreme Court, New York County (Harold Tompkins, J.), entered on or about June 24, 2002, which, in an action by a landlord against a tenant for a declaration that the tenant violated the lease by making alterations to the premises without obtaining the landlord’s consent and necessary permits, an injunction compelling the tenant to restore the premises to their original condition, and attorneys’ fees, denied the landlord’s motion to retransfer the action from Civil Court to Supreme Court pursuant to CPLR 325 (b), unanimously modified, on the law, to retransfer the cause of action for a declaratory judgment, and otherwise affirmed, without costs.

The action should not have been transferred to Civil Court [28]*28pursuant to CPLR 325 (d) since the primary relief sought, a declaratory judgment, is not within that court’s subject matter jurisdiction (see Lex 33 Assoc. v Grasso, 283 AD2d 272 [2001]). Accordingly, we retransfer that cause of action to Supreme Court pursuant to CPLR 325 (b) (see Zuckermann v Spector, 287 AD2d 402 [2001]). Neither the landlord’s failure to appeal the CPLR 325 (d) order, nor his delay in seeking a retransfer, during which, we note, the case was active, requires retention of the action in Civil Court (see id.). We decline to retransfer the causes of action for an injunction and attorneys’ fees since those causes of action are within Civil Court’s jurisdiction and have been dismissed. Concur — Andrias, J.P., Saxe, Ellerin, Lerner and Friedman, JJ.

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Bluebook (online)

306 A.D.2d 27, 759 N.Y.S.2d 666, 2003 N.Y. App. Div. LEXIS 6181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feierstein-v-moser-nyappdiv-2003.

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