Morrison LLC v Linder

[*1] Morrison LLC v Linder 2010 NY Slip Op 50555(U) [27 Misc 3d 126(A)] Decided on April 6, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 6, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570833/09.

Morrison LLC, Petitioner-Landlord-

against

Harold Linder, Respondent-Tenant-Appellant.

Tenant purports to appeal from that portion of a so-ordered stipulation of settlement issued in the Civil Court of the City of New York, Bronx County (Jerald R. Klein, J.), dated September 1, 2009, which "determined" that petitioner-landlord was "authorized" to maintain this nonpayment summary proceeding.

Per Curiam.

Appeal from so-ordered stipulation of settlement (Jerald R. Klein, J.), dated September 1, 2009, dismissed, without costs.

No appeal lies from an order such as the "so-ordered" stipulation of settlement here sought to be reviewed entered on the consent of the appealing party (see Chemical Bank v Zisholtz, 227 AD2d 580 [1996]; Baecher v Baecher, 95 AD2d 841 [1983]). The language in the settlement agreement purporting to preserve tenant's right to "contest" the "determination" that petitioner "is authorized to maintain" this proceeding cannot be read to confer upon tenant appellate rights not otherwise provided by statute (see generally Hoes v Edison General Electric Co., 150 NY 87, 89-90 [1896]; County of Monroe v City of Rochester, 39 AD3d 1272 [2007]). Because the "determination" that tenant seeks to challenge was not the result of a motion made on notice, there is no paper appealable as of right which tenant could contest (see Sholes v Meager, 100 NY2d 333 [2003]). Tenant's remedy, if any, is to move on notice before Civil Court to set aside or modify the stipulation of settlement (see Sholes, supra; Baecher, supra).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 06, 2010