Benben v DiMartini

[*1] Benben v DiMartini 2004 NY Slip Op 50778(U) Decided on July 7, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:DECIDED July 7, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO.2003-627 P C

PAUL BENBEN and FLORENCE BENBEN, Respondents,

against

GAIL DiMARTINI, Appellant.

Appeals by tenant from (1) an order of the Justice Court, Town of Kent, Putnam County (J. Esposito, J.), dated September 7, 2001, denying an application by tenant to vacate a default final judgment, and (2) an order of said court, dated April 23, 2003, after the default final judgment was subsequently vacated, reinstating the final judgment.

Appeal from order dated September 7, 2001 unanimously dismissed.

On the court's own motion, the notice of appeal from the order dated April 23, 2003 is treated as an application for leave to appeal and leave to appeal is granted.

Order dated April 23, 2003 unanimously reversed without costs, default final judgment vacated, and matter remanded to the Justice Court of the Town of Putnam Valley for all further proceedings.

Inasmuch as neither of the orders which tenant seeks to appeal determined a motion made on notice, neither is appealable as of right (UJCA 1702 [a] [2]; Spada v Sepulveda, 306 AD2d 270 [2003]). However, in the exercise of discretion, this court will treat the notice of appeal from the order of April 23, 2003 as an application for leave to appeal and will grant said application (UJCA 1702 [c]; see e.g. Maggio v DeBuono, 4 AD3d 362 [2004]; Spada, 306 AD2d 270).

In this holdover proceeding, the matter was transferred from the Justice Court of the [*2]Town of Putnam Valley to the Justice Court of the Town of Kent after both Town Justices in the Town of Putnam Valley recused themselves. However, the Justice Court of the Town of Kent does not have jurisdiction over a summary proceeding to recover possession of real property located in the Town of Putnam Valley, and the
removal provision pursuant to which the proceeding was improperly transferred (CPLR 325 [g]) does not confer any additional jurisdiction upon the transferee court. Thus, all proceedings had in the Town of Kent Justice Court, including the entry of the default final judgment, are void (NY Const, art VI § 17; UJCA 204; Garnerville Holding Co. v
IMC Needlecraft, NYLJ, July 20, 2000 [App Term, 9th & 10th Jud Dists]; Arcate v Hole
In The Wall Gang, Ltd, 179 Misc 2d 520 [App Term, 9th & 10th Jud Dists 1999]). Accordingly, we remand the matter to the Justice Court of the Town of Putnam Valley. If no judge is available to hear the matter in the Town of Putnam Valley, the proper procedure is to have one assigned pursuant to UJCA 106.

Although tenant did not submit a sworn affidavit in support of her application to vacate the default final judgment, in the interest of judicial economy, we will comment on several of the issues raised by tenant where the facts are not in dispute.

Contrary to tenant's claim, tenant's removal from the premises subsequent to the commencement of the proceeding did not deprive the Town of Putnam Valley Justice Court of jurisdiction over the matter (Eastrich No. 80 Corp. v Patrolmen's Benevolent Assn., 180 Misc 2d 98 [1999]; 2 Dolan, Rasch's Landlord and Tenant - Summary
Proceedings § 38:27 [4th ed]). Contrary to tenant's further claims, the method of service of the notices of default and of termination was governed by paragraph 17 of the lease and not by CPLR 2103 (a), which applies only "from the summons through post-judgment notices" (Alexander, Practice Commentaries, McKinney's Cons Laws of NY,
Book 7B, CPLR C2103:2, at 735; 3A Carmody-Wait 2d, NY Prac § 20:14, at 265).
Thus, the fact that service of these notices was by a party provides no basis for dismissal. Finally, the fact that the petition sought to recover arrears in addition to
possession did not convert this holdover proceeding into a nonpayment proceeding.
Decision Date: July 07, 2004