Slomin's, Inc. v Christiani

[*1] Slomin's, Inc. v Christiani 2014 NY Slip Op 50621(U) Decided on March 31, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ
2013-784 Q C.

Slomin's, Inc., Appellant,

against

Alicia Christiani, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered April 12, 2013. The order granted defendant's motion to vacate a judgment of the same court (Anna Culley, J.) entered pursuant to an order of the same court (Anna Culley, J.) granting plaintiff's motion for summary judgment.

ORDERED that the order entered April 12, 2013 is reversed, without costs, and the matter is remitted to the Civil Court for a determination by Judge Anna Culley of defendant's motion.

Plaintiff commenced this action to recover for the sale and delivery of home heating oil. By order entered February 16, 2012, the Civil Court (Anna Culley, J.) granted plaintiff's motion for summary judgment and directed the clerk to enter judgment in the principal sum of $2,093.24, plus 16 percent interest from December 6, 2010. Notwithstanding the foregoing, the matter appeared on the trial calendar on March 30, 2012, at which time the court (Anna Culley, J.) marked the case "dismissed" as there was no appearance by plaintiff. Seven and a half months later, on November 15, 2012, the clerk entered judgment in favor of plaintiff in the sum of $2,929.73 pursuant to the order entered February 16, 2012.

Defendant thereafter moved to vacate the judgment. Although plaintiff submitted opposition and argued on the return date that the matter should be transferred to Judge Culley, since it was Judge Culley who had issued the order granting summary judgment, Judge Leverett granted the motion and restored the action to the trial calendar.

There is no indication in the record that Judge Culley was no longer available to determine defendant's motion. Thus, Judge Leverett improperly entertained the motion and, in effect, overruled a court of coordinate jurisdiction (see Doscher v Doscher, 54 AD3d 890 [2008]; see generally CPLR 2221 [a]).

Accordingly, the order entered April 12, 2013 is reversed and the matter is remitted to the Civil Court for a determination by Judge Anna Culley of defendant's motion.

Pesce, P.J., Weston and Solomon, JJ., concur. [*2]
Decision Date: March 31, 2014