Lipkis v. Pikus

103 A.D.2d 682, 477 N.Y.S.2d 345, 1984 N.Y. App. Div. LEXIS 19300

Opinions

— Order, Appellate Term, Supreme Court, First Department, entered November 28, 1983 (122 Misc 2d 833), affirming order, Civil Court, New York County (L. Evens, J.), entered May 9, 1983 (122 Misc 2d 136), vacating warrants of eviction, is reversed, on the law and the facts, and in the exercise of discretion, with costs, and the warrants of eviction are reinstated, substantially for the reasons stated in the dissenting memorandum of Justice Thomas J. Hughes at the Appellate Term. H We add that because of tenants’ continued default in making deposits for use and occupancy pursuant to that court’s order of March 30, 1979, the Appellate Term more than two years ago vacated the stay contained in that order, and directed that petitioner may proceed to enforce final judgments of possession only. H Warrants of eviction were issued on January 22,1982 and this court denied leave to appeal on February 22, 1982. Only the frivolous action in the Federal court delayed the execution of the warrants until after the Loft Law (Multiple Dwelling Law, art 7-C) was enacted. 11 Further, there is no statement in the Loft Law directing the vacatur of any prior judgments from which all avenues of appeal had been exhausted prior to the effective date of the Loft Law, or directing a stay of warrants of eviction issued before the enactment of the Loft Law. Subdivision 1 of section 285 of the Multiple Dwelling Law, pointed to as justifying such interference, merely provides that: “the owner of an interim multiple dwelling may recover rent payable from residential occupants qualified for the protection of this article on or after April first, nineteen hundred eighty, and maintain an action or proceeding for possession of such premises for non-payment of rent, provided that he is in compliance with this article.” 11 In terms the section merely affirmatively permits such suits — presumably in situations where such suits could formerly not be maintained. The section — captioned “Owner protection” — does not in terms forbid such suits in any situation — certainly not where such suits could be maintained even before the Loft Law (as the 1979 and 1982 decisions have determined this case could be).

Footnotes

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* 11 In any event, petitioner is not seeking to “maintain” an action or proceeding for possession of such premises; petitioner had already maintained such an action and obtained final judgments from which all appeals had been exhausted and a determination by the appellate courts of this State that the warrants of eviction should no longer be stayed before the enactment of the Loft Law. The statute cannot fairly be read to mean that such a petitioner, who has such final judgments, must now bring a new action to obtain the same final judgments. 11 Our system of justice contains extraordinarily broad provisions for review and correction of judgments. Significant issues in the present lawsuit have been before the Civil Court on at least three occasions, before the Appellate Term of the Supreme Court on at least four occasions (e.g., Lipkis v Pikus, 99 Misc 2d 518), before this court on at least four occasions (e.g., Lipkis v Pikus, 72 AD2d 697; Matter of Pikus v Dudley, 90 AD2d 700), and before the United States District Court and the United States Court of Appeals (plus two attempted appeals to our Court of Appeals dismissed on jurisdictional grounds [51 NY2d 874, 56 NY2d 612]). But litigation must end sometime. At some point the dispute must be deemed decided and the rights of the parties fixed and no longer subject to reexamination (except for the rare condition of supervening new facts or law). At that point the judgment of the court is to be enforced and obeyed; it is not to be ignored, evaded, nibbled away, or stalled by new frivolous lawsuits or other devices. Concur — Murphy, P. J., Sullivan and Silverman, JJ. Fein and Kassal, JJ., dissent in separate memoranda as follows:

A different section, section 286 of the Multiple Dwelling Law, protects tenants from eviction on the ground that the occupancy is illegal because residential occupancy is not permitted by the lease, or because there is no residential certificate of occupancy. But the eviction judgments in this case were for nonpayment of rent. We think the dissent, in suggesting proceedings before the Loft Board, does not give adequate weight to this distinction. The warrants of eviction in this case are not based on some default that the Loft Law protects tenants against; they are based on refusal to pay rent after a final judgment adjudicated the rights of the parties and directed such payment.