Elk 300 E 83 LLC v Dowd

[*1] Elk 300 E 83 LLC v Dowd 2015 NY Slip Op 50882(U) Decided on June 12, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 12, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570402/15

Elk 300 E 83 LLC, -Appellant,

against

Rosemary Dowd, Respondent-Tenant, -and- "John and/or Jane Doe," Respondents.

Petitioner-landlord appeals from (1) an order of the Civil Court of the City of New York, New York County (David J. Kaplan, J), entered July 28, 2014, which denied, without prejudice, its motion for summary judgment of possession against respondents Michael Dowd and Catherine Dowd, and (2) an order (same court and Judge), entered November 17, 2014, which denied petitioner's motion to reargue the aforesaid order.

Per Curiam.

Order (David J. Kaplan, J.), entered July 28, 2014, affirmed, with $10 costs. Appeal from order (David J. Kaplan, J.), entered November 17, 2014, dismissed, without costs, as nonappealable.

We sustain the denial of petitioner-landlord's motion for summary judgment of possession without prejudice to renewal upon service of the underlying motion papers on respondent Catherine Dowd [Catherine]. Inasmuch as Catherine is a party to this proceeding, as evidenced by the April 26, 2011 stipulation of the parties, petitioner was required to serve Catherine with the underlying summary judgment motion (see CPLR 2103[e]; Forte v Cities Serv. Oil Co., 195 AD2d 805, 806 [1993]; see also Pol-Tech Indus. v Panzarella, 227 AD2d 992 [1996]). Nor may petitioner's failure to serve Catherine with the motion be overlooked as a mere irregularity (see Forte v Cities Serv. Oil Co., supra at 807; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2103:6), since the motion sought relief against Catherine, including a possessory judgment. We reach no other issue.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 12, 2015