Fulton Redevelopment Co. v. Kendall

68 Misc. 2d 813, 327 N.Y.S.2d 956, 1971 N.Y. Misc. LEXIS 1443

• Court: New York Supreme Court
• Decided: July 20, 1971
• Status: Published

Opinion

Robert J. Trainor, J.

This is a proceeding, pursuant to article 78 of the CPLR, for a judgment directing the Honorable Irving B. Kendall, Associate City Court Judge of the City of Mount Vernon, to vacate a temporary stay he granted in a summary proceeding to recover real property which he had decided in petitioner’s favor. There is also before the court a cross motion by the respondent to dismiss the proceeding.

Petitioner’s sole argument is that a City Court Judge has no authority to stay the issuance of a warrant of eviction under the facts of this case. This court does not agree.

While it is true that the authority contained in subdivision 4 of section 751 of the Beal Property Actions and Proceedings Law, which expressly authorized such a stay was not extended beyond September 1, 1967, this is not to say that a City Court Judge was thereby deprived of the authority to grant such a stay in a proper case. CPLB 2201 states: ‘ ‘ Except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.”

By virtue of UCCA 212 and 2102 this authority is extended to the City Courts. (2 Basch, New York Law of Landlord and Tenant and Summary Proceedings [1970 Supp.], p. 179; Canigiani v. Deptula, 59 Misc 2d 401.) To hold otherwise would result in an unreasonable curtailment of the lower courts’ ability to respond to the equities of a particular case.

Accordingly, this proceeding should be dismissed. In view of the foregoing the court finds that it is not necessary to render any decision on the cross motion by the respondent.

Submit order on notice.