Third City Corp. v. Lee

41 A.D.2d 611, 340 N.Y.S.2d 654, 1973 N.Y. App. Div. LEXIS 5142

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 1973
• Status: Published

Opinion

Order of the Appellate- Term of the Supreme' Court, First Department, eritered. June .16, 1972, affirming an order of Civil Court of thé City of.-New York, New .York County, eritered .January 6, 1972, vacating respondent’s default, unanv. mously reversed, on the law' and on the facto,, without costs arid -.without disr bursements, and'respondent’s motion, to vacate thé default-judgment entered ' against him denied, without .prejudice, however, to ariy of respondent’s rights^ in .a pending Supreme'Court action against appellant and another. The. stay dated .-September 15* 1972, and continued by .order of this court entered on. October: 17, 1972, is-vacated. A summary disposséss proceeding was instituted •against respondent-tenant for nonpayment of rent. Service, of' process was effected by constructive service. When respondent defaulted in pleading, a' final judgment , was entered and a warrant of- eviction .issued and executed. After the premises.were relet, respondent moved.to vacate' the default judgment alleging, inter alla, that he never received a copy of the petition and' notice of petition. The motion was granted to the extent of vacating the judgment and directing.a trial. The Appellate Term affirmed, said order without ^opinion. Although we agree with the courts below, that the Civil Court may grant relief, in appropriate circumstances, from its own' judgments or orders (CCA, § 212; CPLR 5015), even after execution of a warrant, we conclude that it should not have been granted in this proceeding. In seeking relief from his default, respondent did not'join the new tenant as a' party and he seeks; no" affirmative relief from the Civil Court. Instead, respondent has commenced a lawsuit in the Supreme Court seeking damages of over $1,000,000 from appellant and $50,000. from the. new tenant. It therefore clearly appears that respondent does hot' desire to be -restored as a tenant, and - that he will .now ..merely deposit his past-due rent in court and obtain a disndssal of the nonpayment. proceeding to bolster his damage suit. Resort to.the Civil Court solely for this limited purpose should-not be permitted; Respondent’s grievance can be fully litigated in his pending Supreme, Court action, .the merits of which we’ do not pass' upon, and our disposition herein is specifically made without. prejudice thereto. Concur — MeGivern, J. P., Nunez, Murphy, Capozzoli and Macken, JJ. . ;