Yaakov v Kupershalayak

[*1] Yaakov v Kupershalayak 2007 NY Slip Op 51968(U) [17 Misc 3d 129(A)] Decided on October 1, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2005-1755 K C.

Nesivos Bais Yaakov, Respondent,

against

Felix Kupershalayak, Appellant, -and- "JOHN DOE" and "JANE DOE", Undertenants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Inez Hoyos, J.), entered August 17, 2005. The order granted landlord's motion to disburse $25,000 in escrow funds to landlord and denied tenant's cross motion to disburse the funds to tenant.

Order modified by providing that landlord's motion is denied without prejudice and that the denial of tenant's cross motion is without prejudice; as so modified, affirmed without costs.

The parties settled this summary proceeding by a so-ordered stipulation which provided, inter alia, that if tenant surrendered possession by a date certain, $25,000 that was to be deposited into an escrow account held by landlord's attorney would be released to tenant, that the funds would be returned to landlord if tenant breached the stipulation, and that landlord would, upon tenant's timely application, pay tenant $5,000 to defray moving costs. Tenant failed to vacate by the specified date. After evicting tenant, landlord moved for an order releasing the escrow funds to landlord, and tenant cross-moved for an order releasing the funds to tenant on the ground that landlord breached the stipulation by failing to provide the $5,000 for moving costs and that tenant's breach, if any, was de minimis in relation to the magnitude of the forfeiture provided for [*2]in the stipulation. The court, after a hearing, granted landlord's motion and denied tenant's cross motion.

In Topaz Realty Corp. v Morales (9 Misc 3d 27, 28-29 [App Term 2d & 11th Jud Dists 2005]), this court stated the following:
"Inasmuch as an order directing [a] landlord's attorney to release . . . funds being held in escrow [is] equitable and injunctive in nature . . . and not within the limited equitable and injunctive powers of the Civil Court . . . the order was not within the jurisdiction of the court to make" (see also World Realty Corp. v Consumer Sales, Inc., 9 Misc 3d 136[A], 2005 NY Slip Op 51696[U] [App Term, 9th & 10th Jud Dists]).
In view of the foregoing, the motion and cross motion should have been denied without prejudice to the parties seeking appropriate relief in a proper forum.

Pesce, P.J., and Rios, J., concur.

Golia, J., taking no part.