Opinion
July 11, 1977
Appeal from the Civil Court of the City of New York, Queens County, JOSEPH FARLO, J.
Sprague Sprague (John Peter Sprague of counsel), for appellant.
Leonard Lazarus and Richard Klugherz, pro se for respondent.
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 N.Y. 435; Matter of Creamer, 37 A.D.2d 33; Adams v George T. Cantrello, Inc., 29 A.D.2d 559).
Concur: PINO, P.J., and THOMPSON, J.; WEINSTEIN, J., taking no part.