Matthow v 322 W. 57th Owner, LLC

[*1] Matthow v 322 W. 57th Owner, LLC 2012 NY Slip Op 50042(U) Decided on January 12, 2012 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 12, 2012
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570540/11.

Dana Matthow, Plaintiff-

against

322 West 57th Owner, LLC, Swig Burris Equities, LLC and Kenneth M. Swig, Defendants-Appellants.

Defendants appeal from an order of the Civil Court of the City of New York, New York County (Kibbie F. Payne, J.), entered March 8, 2011, which, in effect, denied their motion for summary judgment dismissing the complaint without prejudice to an application in Supreme Court for retransfer of the action to that court.

Per Curiam.

Order (Kibbie F. Payne, J.), entered March 8, 2011, reversed, with $10 costs, and matter remanded to Civil Court for a determination of defendants' motion on the merits.

Civil Court erred when it, sua sponte, refused to entertain the merits of defendant's summary judgment motion based on a perceived lack of jurisdiction. The requests for declaratory and injunctive relief initially included in plaintiff's Supreme Court complaint indisputably were rendered academic prior to the CPLR 325(d) transfer of the matter to Civil Court, by reason of the final DHCR determination in favor of plaintiff-tenant and the resultant action by defendant-landlord in withdrawing the underlying notice to quit. All that remains to be litigated are plaintiff's monetary claims that are clearly within Civil Court's authority to adjudicate, albeit with the monetary jurisdiction of Supreme Court governing any recovery (see Tobias v New York Hosp., 279 AD2d 374 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 12, 2012