City of New York v Jennings

[*1] City of New York v Jennings 2009 NY Slip Op 51825(U) [24 Misc 3d 145(A)] Decided on August 24, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 24, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570332/08.

The City of New York, Plaintiff-Appellant,

against

Allan W. Jennings, Jr., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Ernest J. Cavallo, J.), dated August 6, 2007, which denied its motion for summary judgment and, sua sponte, granted summary judgment in favor of defendant dismissing the complaint.

Per Curiam.

Order (Ernest J. Cavallo, J.), dated August 6, 2007, reversed, with $10 costs, complaint reinstated and plaintiff's motion for summary judgment is granted in the principal sum of $5,000, with statutory interest from January 9, 2006.

Inasmuch as defendant was unsuccessful in his CPLR Article 78 challenge to the civil penalties imposed against him by the New York City Council, defendant may not now challenge the propriety of the imposition of the civil penalties in the context of this plenary action by the City seeking their collection (see generally Brooklyn Welding Corp. v City of New York, 198 AD2d 189 [1993]). To the extent that defendant's opposition papers below appeared to argue that the underlying City Council resolution imposing the civil penalties is not enforceable by way of a plenary action, the argument is without merit. Pursuant to New York City Charter § 394, the Corporation Counsel "shall have the right to institute actions in law or equity ... in any court ... to collect any ... fines or penalties or to enforce the laws [emphasis added]."

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 24, 2009