Mustafa v Plein

[*1] Mustafa v Plein 2012 NY Slip Op 50166(U) Decided on January 24, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 24, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., WESTON and RIOS, JJ
2010-3220 K C. -x

Shirajul Mustafa, Respondent,

against

Helgia Plein, Appellant, -and- "JOHN DOE" and "JANE DOE", Undertenants. -x

Appeal from an order of the Civil Court of the City of New York, Kings County (Gary Franklin Marton, J.), dated October 25, 2010. The order denied tenant's motion to vacate a default final judgment awarding landlord possession and the sum of $5,800 in a holdover summary proceeding.

ORDERED that the order is modified by providing that tenant's motion to vacate the default final judgment is granted to the extent of vacating the monetary award contained in the default final judgment; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for further proceedings in accordance with the decision herein.

In this holdover proceeding, tenant failed to appear at trial, and a final judgment was entered, after an inquest, awarding landlord possession and the sum of $5,800. As the petition demanded only $4,500, it was error for the court, at inquest, to award landlord more than the amount demanded in the petition (see Port Chester Hous. Auth. v Turner, 189 Misc 2d 603 [App Term, 9th & 10th Jud Dists 2001]; 8B Carmody Wait 2d § 63:64). Accordingly, so much of tenant's motion as sought to vacate the monetary award in the default final judgment should have been granted.

In view of the foregoing, we remit the matter to the Civil Court for entry of a proper final judgment.

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: January 24, 2012