Majority
p. 262Supreme Court, Appellate Term, Second Department, July 11, 1977
Richard Klugherz, as Attorney for Marglo Associates, Respondent, v Sutphin Food Shop, Inc., Appellant.
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 en
p. 263
tered 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 NY 435 ; Matter of Creamer, 37 AD2d 33 ; Adams v George T. Cantrello, Inc., 29 AD2d 559 ).
Concur: Pino, P. J., and Thompson, J.; Weinstein, J., taking no part.
Cases cited
- Yonkers Fur Dressing Co. v. Royal Insurance 247 NY 435 p. 263
- In re the Accounting of Creamer 37 AD2d 33 p. 263