341 E. 19th St. Realty v Sylvester

[*1] 341 E. 19th St. Realty v Sylvester 2005 NYSlipOp 51311(U) Decided on August 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 17, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: August 17, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and GOLIA, JJ.
2004-506 K C

341 East 19th Street Realty, Appellant,

against

Stanley Sylvester, Respondent.

Appeal by landlord, in a supplementary proceeding to enforce a judgment, from an order of the Civil Court, Kings County (J. Battaglia, J.), entered March 25, 2004, granting a motion by tenant to vacate a default judgment and lift a restraining order to the extent of permitting tenant access to his funds to the extent of $5,000.

Appeal unanimously dismissed.

In this supplementary proceeding to enforce a default judgment entered against tenant in a holdover summary proceeding, tenant moved to vacate the default judgment and lift a restraint on his bank account. The landlord appeals from the order entered on March 25, 2004 which granted tenant's motion only to the extent of affording tenant access to funds up to $5,000. We take judicial notice of a subsequent order of the same court, entered on August 11, 2004, on consent, providing that "The action. . . shall be restored to the appropriate calendar. The judgment entered against the movant [tenant] and all post-judgment enforcement, including income executions and restraints, shall be vacated without further order of the Court."

The effect of the August 11, 2004 order, in which it is indicated landlord consented, inter alia, to the relief that tenant actually received pursuant to the order appealed from, is to render landlord's appeal from the March 25, 2004 order (lifting the restraint to the extent of $5,000) moot. Therefore, under the present state of the record, we are constrained to dismiss the appeal. Landlord's remedy, if it be so advised, is to seek vacatur of the August 11, 2004 order. In the event of such vacatur, landlord may seek to vacate the dismissal of the instant appeal. [*2]
Decision Date: August 17, 2005