Klugherz v. Sutphin Food Shop, Inc.

91 Misc. 2d 262, 397 N.Y.S.2d 869, 1977 N.Y. Misc. LEXIS 2292

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 11, 1977
• Status: Published

Opinion

Memorandum. Order modified by providing that the denial of tenant’s motion be without prejudice to the institution of a plenary suit by tenant, if it be so advised; as so modified, affirmed without costs.

In this nonpayment summary proceeding, the parties entered into a stipulation of settlement and a final judgment was entered thereon. Thereafter, landlord obtained a warrant of eviction based upon tenant’s noncompliance with the stipulation. An order to show cause staying all proceedings was obtained by tenant in connection with its motion to stay the execution of the warrant of eviction and to vacate the consent judgment on the ground that landlord breached the terms of the stipulation. However, before the order to show cause was served, the warrant of eviction was executed.

Since the proceeding was terminated upon the execution of the warrant of eviction, the court did not have the power to entertain tenant’s motion as the relief sought by tenant may only be obtained in a plenary suit (Yonkers Fur Dressing Co. v Royal Ins Co., 247 NY 435; Matter of Creamer, 37 AD2d 33; Adams v George T. Cantrello, Inc., 29 AD2d 559).

Concur: Pino, P. J., and Thompson, J.; Weinstein, J., taking no part.