Johnson v Hunte

[*1] Johnson v Hunte 2005 NYSlipOp 51160(U) Decided on July 21, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: July 21, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
2004-1276 K C

Frederick Johnson, Respondent,

against

Norma Hunte, Appellant.

Appeal by tenant from a final judgment of the Civil Court, Kings County (M. Finkelstein, J.), entered November 6, 2003 in a summary holdover proceeding, awarding landlord possession, and from a judgment of the same court, entered July 1, 2004, awarding landlord the sum of $3,375.

Appeal from final judgment entered November 6, 2003 unanimously dismissed.

Judgment entered July 1, 2004 unanimously reversed without costs and award to landlord vacated without prejudice to landlord's assertion of a claim for relief in a proper forum.

The appeal from the final judgment entered November 6, 2003 awarding landlord possession is dismissed because no appeal lies from a final judgment entered on
consent pursuant to a stipulation. The entry of a second, money judgment in favor of landlord, after oral argument upon tenant's post-judgment order to show cause application, was improper, particularly in the absence of a stipulation provision providing for the entry of such a judgment in the event of tenant's breach. Landlord's remedy is a plenary action to recover the sums due (Citibank v Schorr, NYLJ, Apr. 29, 1997 [App Term, 2d & 11th Jud Dists]; see also 1173 Bergen St. Realty Corp. v City of New York, NYLJ, Dec. 14, 2000 [App Term, 2d & 11th Jud Dists]; GMAC Mtge. Corp. v Carney, NYLJ, Sept. 23, 1997 [App Term, 2d & 11th Jud Dists]; Barzack Realty Co. v Legatti & Son, 114 Misc 2d 245, 246-247 [Civ Ct, NY County 1982]).
Decision Date: July 21, 2005