LAS Redevelopment Co. v. Frasier — 300 A.D.2d 767

Majority

p. 767

In the Matter of LAS Redevelopment Company, Respondent, v Susan Frasier, Appellant.

[750 NYS2d 794]

—Appeal from an order of the Supreme Court (Teresi, J.), entered June 8, 2001 in Albany County, which, inter alia, denied respondent’s motion to remove a proceeding from Albany City Court.

On June 1, 2001, an eviction proceeding was commenced against respondent in Albany City Court. Respondent moved in Supreme Court to stay the proceeding and remove it to Supreme Court. Prior to a decision on the motion, a default judgment was entered against respondent in City Court. Supreme Court then denied respondent’s motion for removal and stay. Respondent appeals directly from Supreme Court’s order denying her motion.

When Supreme Court entertained the motion to remove, the

p. 768

underlying proceeding had already been terminated by the entry of the default judgment. Accordingly, since there was no proceeding pending in City Court to remove, Supreme Court should have denied the motion as moot, rather than on the merits (see Matter of Hearst Corp. v Clyne, 50 NY2d 707 , 713-714).

Mercure, J.P., Spain, Carpinello, Mugglin and Kane, JJ., concur. Ordered that the order is affirmed, without costs.

Cases cited

Hearst Corp. v. Clyne 50 NY2d 707 N.Y. 1980-07-03 at 713-714 p. 768