Opinion
No. 2011–952 RI C.
2011-12-23
Mohamed KEITA, Appellant, v. Sara OTTMAN, Respondent, and “John Doe” and “Jane Doe”, Undertenants.
Present: PESCE, P.J., GOLIA and STEINHARDT, JJ.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Marina Mundy, J.), dated February 18, 2011. The order denied landlord's motion to restore the proceeding to the calendar for the purpose of scheduling an inquest against “John Doe” and “Jane Doe,” and granted tenant's oral motion to, in effect, vacate the final judgment entered against her and to dismiss the petition as against her.
ORDERED that so much of the appeal as is from the portion of the order granting tenant's oral motion to, in effect, vacate the final judgment entered against her and to dismiss the petition as against her is dismissed; and it is further,
ORDERED that the order, insofar as reviewed, is affirmed, without costs.
In this holdover summary proceeding converted by stipulation to a nonpayment summary proceeding, the parties, on December 20, 2010, entered into a further stipulation pursuant to which a final judgment was entered awarding landlord possession and the principal sum of $9,001 against tenant Sara Ottman, with the issuance of the warrant stayed until January 20, 2011 for payment. Thereafter, landlord unsuccessfully sought to obtain a warrant, first by application for an order to show cause and then by application to the marshal. The marshal rejected the application on several grounds, including that an inquest was necessary with respect to “John Doe” and “Jane Doe.” Landlord then moved to restore the proceeding to the calendar for the purpose of scheduling an inquest with respect to “John Doe” and “Jane Doe,” incorrectly claiming that there was a warrant on file. The Civil Court found that the final judgment had been satisfied and denied landlord's motion. Upon an oral motion by tenant, the court vacated the final judgment entered against her, purported to vacate a warrant and dismissed the petition as against her.
With respect to tenant's oral motion, no appeal as of right lies from an order or part of an order which does not decide a motion made on notice, and the subject oral motion, although apparently not ex parte, was not made on notice ( seeCCA 1702[a][2] ). A motion on notice is made when an order to show cause or notice of motion is served (CPLR 2211; 1223 Bushwick, LLC v. Williams, 19 Misc.3d 128[A], 2008 N.Y. Slip Op 50512[U] [App Term, 2d & 11th Jud Dists 2008]; Cucaj v. Paramount Fee, L.P., 17 Misc.3d 130[A], 2007 N.Y. Slip Op 51976[U] [App Term, 2d & 11th Jud Dists 2007] ). Accordingly, as leave to appeal has not been granted, so much of the appeal as is from the portion of the order granting tenant's oral motion to, in effect, vacate the final judgment entered against her and to dismiss the petition as against her is dismissed.
Landlord did not allege, in support of his motion, that tenant had not satisfied the monetary portion of the judgment. Indeed, the court stated that the judgment had been satisfied on December 29, 2010, well before the deadline set forth in the stipulation, and landlord has not argued that this was incorrect. Consequently, as the record indicates that the final judgment in this nonpayment proceeding had been satisfied prior to the issuance of the warrant, the court properly denied landlord's motion to restore the matter to the calendar ( see Clark v. Williams, 149 Misc.2d 945 [App Term, 2d & 11th Jud Dists 1991] ).
Accordingly, the order, insofar as reviewed, is affirmed.