Kingsview Homes, Inc. v. Pette

Appellate Division of the Supreme Court of New York

Kingsview Homes, Inc. v. Pette

9 A.D.2d 782, 193 N.Y.S.2d 434, 1959 N.Y. App. Div. LEXIS 5883

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

DecidedNovember 23, 1959

StatusPublished

Cited by1 cases

This text of 9 A.D.2d 782 (Kingsview Homes, Inc. v. Pette) 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.

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Kingsview Homes, Inc. v. Pette, 9 A.D.2d 782, 193 N.Y.S.2d 434, 1959 N.Y. App. Div. LEXIS 5883 (N.Y. Ct. App. 1959).

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Opinion

Petition by a landlord for an order to restrain (1) the vacating and canceling of three warrants issued by the Municipal Court of the City of New York, Borough of Brooklyn, Eirst District, and (2) the amending of an order dated June 29, 1959 so as to provide that the issuance of warrants be stayed»for five days after service of a copy of the order thereon, with notice of entry. An order dated August 10, 1959 vacating the warrants and amending the order dated June 29, 1959 was made on the court’s own motion on its denial of a motion by the tenants for a stay. The order dated June 29, 1959 was made after the expiration of a stay of the issuance of the warrants and was an order affirming the final orders and judgments of the Municipal Court granting possession to the landlord in [783]*783summary proceedings and staying the issuance of the warrants. Motions were made by respondents to dismiss the petition for insufficiency (Civ. Prac. Act, § 1293). Determination contained in the order dated August 10, 1959, made on the court’s own motion, annulled, without costs, and respondents Justices directed to strike from said order everything beginning with the words “ On the Court’s own motion”. There was no appeal pending when the order dated August 10, 1959 was made. The court did not have power to vacate the issuance of the warrants. There was no statutory authority therefor and the relationship of landlord and tenant did not survive the lawful issuance of the warrants. (Hanover Bank v. Be Koenigsberg, 207 Mise. 1088, affd. 285 App. Div. 928; Hendricks V. Ergis, 66 N. T. S. 2d 349; Emray B,ealty Corp. v. Lloyd, 5 Mise 2d 938; Matter of Elcock v. Boccia, 12 Mise 2d 955.) Under the circumstances, the granting of relief in this proceeding furnishes a more effective remedy than would correction on appeal subsequent to granting of leave to appeal (Matter of Culver Gontr. Corp. v. Humphrey, 268 NT. T. 26, 39, 40). The facts are undisputed and, therefore, the granting of further time (Civ. Prac. Act, § 1291) within which to answer would be purposeless. The action subsequently brought for declaratory judgment by the tenants and incidental temporary injunction have nothing to do with the summary proceedings leading to issuance of the warrants here considered, as shown by the denial in the order dated August 10, 1959 of the tenants’ motion for a stay. Present — Nolan, P. J., Ughetta, Hallinan and Kleinfeld, JJ. Murphy, J., deceased.

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Petition by a landlord for an order to restrain (1) the vacating and canceling of three warrants issued by the Municipal Court of the City of New York, Borough of Brooklyn, Eirst District, and (2) the amending of an order dated June 29, 1959 so as to provide that the issuance of warrants be stayed»for five days after service of a copy of the order thereon, with notice of entry. An order dated August 10, 1959 vacating the warrants and amending the order dated June 29, 1959 was made on the court’s own motion on its denial of a motion by the tenants for a stay. The order dated June 29, 1959 was made after the expiration of a stay of the issuance of the warrants and was an order affirming the final orders and judgments of the Municipal Court granting possession to the landlord in [783]*783summary proceedings and staying the issuance of the warrants. Motions were made by respondents to dismiss the petition for insufficiency (Civ. Prac. Act, § 1293). Determination contained in the order dated August 10, 1959, made on the court’s own motion, annulled, without costs, and respondents Justices directed to strike from said order everything beginning with the words “ On the Court’s own motion”. There was no appeal pending when the order dated August 10, 1959 was made. The court did not have power to vacate the issuance of the warrants. There was no statutory authority therefor and the relationship of landlord and tenant did not survive the lawful issuance of the warrants. (Hanover Bank v. Be Koenigsberg, 207 Mise. 1088, affd. 285 App. Div. 928; Hendricks V. Ergis, 66 N. T. S. 2d 349; Emray B,ealty Corp. v. Lloyd, 5 Mise 2d 938; Matter of Elcock v. Boccia, 12 Mise 2d 955.) Under the circumstances, the granting of relief in this proceeding furnishes a more effective remedy than would correction on appeal subsequent to granting of leave to appeal (Matter of Culver Gontr. Corp. v. Humphrey, 268 NT. T. 26, 39, 40). The facts are undisputed and, therefore, the granting of further time (Civ. Prac. Act, § 1291) within which to answer would be purposeless. The action subsequently brought for declaratory judgment by the tenants and incidental temporary injunction have nothing to do with the summary proceedings leading to issuance of the warrants here considered, as shown by the denial in the order dated August 10, 1959 of the tenants’ motion for a stay. Present — Nolan, P. J., Ughetta, Hallinan and Kleinfeld, JJ. Murphy, J., deceased.

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9 A.D.2d 782, 193 N.Y.S.2d 434, 1959 N.Y. App. Div. LEXIS 5883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kingsview-homes-inc-v-pette-nyappdiv-1959.

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