Leung v Kyu Sushi, Inc.

[*1] Leung v Kyu Sushi, Inc. 2007 NY Slip Op 51070(U) [15 Misc 3d 141(A)] Decided on May 24, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2005-341 K C.

Claire W.K. Leung, Appellant,

against

Kyu Sushi, Inc., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sidney Goodheartz, J.H.O.), entered February 1, 2005. The order vacated the warrant of eviction.

Order affirmed without costs.

After a default under the terms of a stipulation settling this nonpayment proceeding, tenant applied, on December 23, 2004, for an order to show cause seeking, inter alia, to stay execution of the warrant so that tenant could pay the arrears. The Civil Court refused to sign tenant's order to show cause, but the order to show cause was signed by this court pursuant to CPLR 5704 (b) on condition tenant deposit
the outstanding arrears into court, which tenant did. The order to show cause signed by this court was returnable in the Civil Court on January 11, 2005.

On January 7, 2005, landlord attempted to file, in this court, papers in opposition to tenant's order to show cause. The papers were rejected, and landlord was advised that the papers had to be filed in the Civil Court. Landlord claims on appeal that it filed the opposition papers in the Civil Court on January 11, 2005. However, landlord did not appear at the oral argument of the motion that day. Accordingly, by order dated January 11, 2005, tenant's motion was granted on default, the Civil Court noting that the judgment had been satisfied. It appears from the court's recitation of the papers considered on the motion that landlord's opposition papers were not considered. The funds on deposit were released to landlord on January 25, 2005 pursuant to landlord's application.

By order to show cause returnable February 1, 2005, tenant, after being served with a notice of eviction, again moved to stay the warrant, arguing that its prior motion had been granted and that landlord had wrongfully ordered service of the notice of eviction on January 12, [*2]2005. Landlord opposed this motion, contending, mistakenly, that the Civil Court's December 23rd refusal to sign tenant's application for an order to show cause returnable January 11, 2005 constituted a denial of the order to show cause. Landlord also claimed, apparently correctly, that a copy of the January 11,
2005 order was not in the court file when the notice of eviction was issued. In an order dated February 1, 2005, the Civil Court vacated the warrant, again noting that the judgment had been satisfied.

Landlord's contention on this appeal that the Civil Court was required by "collateral estoppel" (the appropriate principle would be the law of the case doctrine) to honor the January 11, 2005 denial of tenant's order to show cause is without merit. As the foregoing recitation of the facts demonstrates, there was no January 11, 2005 denial of tenant's order to show cause. While landlord also claims that the order to show cause signed by this court returnable January 11, 2005 was never calendared in the Civil Court, landlord failed to raise this contention either in opposition to tenant's motion returnable February 1, 2005 or by way of a motion to vacate the January 11, 2005 default order. Accordingly, the order of February 1, 2005 granting tenant's motion to vacate the warrant is affirmed.

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: May 24, 2007