Rodriguez v. City Court

Appellate Division of the Supreme Court of New York

Rodriguez v. City Court

138 A.D.2d 475, 526 N.Y.S.2d 24, 1988 N.Y. App. Div. LEXIS 2849

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

DecidedMarch 14, 1988

StatusPublished

Cited by2 cases

This text of 138 A.D.2d 475 (Rodriguez v. City Court) 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

Rodriguez v. City Court, 138 A.D.2d 475, 526 N.Y.S.2d 24, 1988 N.Y. App. Div. LEXIS 2849 (N.Y. Ct. App. 1988).

Pincite

Opinion

In an action, inter alia, for a judgment declaring that the policy of the City Court of the City of Yonkers of requiring rental arrears to be deposited with the court before a trial will be allowed in a nonpayment proceeding on a warranty of habitability defense violated her rights under Real Property Law § 235-b, RPAPL 745 and the Due Process and Equal Protection Clauses of the New York State and Federal Constitutions, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Martin, J.), dated August 20, 1986, which dismissed her complaint.

Ordered that the judgment is affirmed, without costs or disbursements.

Upon a review of the record, we find that this case cannot be maintained as an action for a declaratory judgment. It has long been the policy of this State that a declaratory judgment action cannot be used to circumvent the normal appellate process (Bower & Gardner v Evans, 60 NY2d 781; Mundy v Nassau County Civ. Serv. Commn., 44 NY2d 352) and should only lie to declare rights before a "wrong” occurs, not to launch a collateral attack with respect to pending litigation (Klostermann v Cuomo, 61 NY2d 525; Matter of Morgenthau v Erlbaum, 59 NY2d 143, cert denied 464 US 993; New York Pub. Interest Research Group v Carey, 42 NY2d 527). The plaintiff here could have moved to vacate her default in a summary eviction proceeding pending against her, and could have appealed from a denial of such a motion, and thus could have adequately addressed the issues presented in this action. Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur.

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In an action, inter alia, for a judgment declaring that the policy of the City Court of the City of Yonkers of requiring rental arrears to be deposited with the court before a trial will be allowed in a nonpayment proceeding on a warranty of habitability defense violated her rights under Real Property Law § 235-b, RPAPL 745 and the Due Process and Equal Protection Clauses of the New York State and Federal Constitutions, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Martin, J.), dated August 20, 1986, which dismissed her complaint.

Ordered that the judgment is affirmed, without costs or disbursements.

Upon a review of the record, we find that this case cannot be maintained as an action for a declaratory judgment. It has long been the policy of this State that a declaratory judgment action cannot be used to circumvent the normal appellate process (Bower & Gardner v Evans, 60 NY2d 781; Mundy v Nassau County Civ. Serv. Commn., 44 NY2d 352) and should only lie to declare rights before a "wrong” occurs, not to launch a collateral attack with respect to pending litigation (Klostermann v Cuomo, 61 NY2d 525; Matter of Morgenthau v Erlbaum, 59 NY2d 143, cert denied 464 US 993; New York Pub. Interest Research Group v Carey, 42 NY2d 527). The plaintiff here could have moved to vacate her default in a summary eviction proceeding pending against her, and could have appealed from a denial of such a motion, and thus could have adequately addressed the issues presented in this action. Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur.

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Bluebook (online)

138 A.D.2d 475, 526 N.Y.S.2d 24, 1988 N.Y. App. Div. LEXIS 2849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-city-court-nyappdiv-1988.

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