1234 Broadway LLC v Schneider

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1234 Broadway LLC v Schneider 2012 NY Slip Op 31830(U) June 26, 2012 Supreme Court, New York County Docket Number: 102212/12 Judge: Cynthia S. Kern Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART Justice Index Number: 10221212012 1234 BROADWAY, LLC. INDEX NO. VS. MOTION DATE HON. JEAN T. SCHNEIDER SEQUENCE NUMBER : 001 MOTION SEP. NO. - ARTICLE 78 The following papen, numbered Ito -, Notlce of MotionlOrder to Show Cause Answorlng Affidavit8 were rbad on thl8 motion tolfor - Affidavits - Exhibltr IN O W . INo(d* INo(d. - ExhiblG Rsplylng Affldavite Upon the foregolng papers, It la ordered that thls motlon I s RECEIVED JUN 2 8 2012 MOTION SUPPORT OFFICE NYS SUPREME COURT - CIVIL is decided in accordance with the annexed decision. Dated: & \( 4 CASE DISPOSED ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0GRANTED DENIED 3. CHECK IF APPROPRIATE: ................................................ SETTLE ORDER 1. CHECK ONE: DO NOT POST ,J.S.C. I NON-FINAL DISPOSITION J 0GRANTED IN PART 0OTHER 0SUBMIT ORDER IJ FIDUCIARY APPOINTMENT -REFERENCE 0 [* 2] For an Order Pursuant to Article 78 of the Civil Practice Law and Rules, DECISION/ORDER -against- HONORABLE JEAN T. SCHNEIDER,as Judge of the Housing Court and CAROL ALT, a clerk of the NYC Civil Court ,et al, s FILED Recitation, as required by CPLR 22 19(a), of the papers considered in the review of this motion for Papers Numbered Notice of Motion and Affidavits Annexed.................................... Notice of Cross Motion and Answering Affidavits....................... Replying Affidavits...................................................................... .................................................................................... Exhibits., 1 2 3 4 Petitioner has commenced the present Article 78 proceeding seeking an order, by a writ of mandamus f o this court, directing Judge Schneider and the clerk of Civil C u t to enter a final rm or judgment determining the rights of the parties in accordance with the Court s oral opinion rendered on the record on January 25,2008. For the reasons stated below, the motion is denied and this proceeding is dismissed. Petitioner landlord 1234 Broadway, LLC brought a holdover proceeding on the ground of 1 [* 3] non-primary residence. in the Civil Court, Housing Part,against the tenant of record who did not appear in the proceeding and the subtenant, Eun Ja Kim, who did appear and claimed tenancy rights. The trial concluded on January 25,2008 and the Judge rendered a decision on the record granting final judgment in favor of the petitioner against the tenant of record and dismissed the petition as against E m Ja Kim,the subtenant who actually resided in the premises. By notice of entry dated February 19,2008, counsel for Eun Ja Kim served a copy of the file jacket denoting the dismissal of the petition against Kim and that the decision w s on the record contained in the trial transcript. By a notice of appeal, dated February 29,2008, petitioner appealed the January 25,2008 decision and order dismissing the petition against Kim. Petitioner alleges that the appellate term, First Department would not allow counsel to perfect the appeal because of the absence of a final judgment or appealable order. Petitioner then did absolutely nothing until it made a motion returnable on September 10,20 I 1 in which it submitted to the court a proposed order and judgment for signature. By decision dated November 2,201 1, the Judge declined to sign the proposed order and judgment finding the application untimely, based on the delay of almost four years in submitting the proposed order. The court attorney for the Judge then explained to movant that it could submit another order but that it would have to explain the reasons for the almost four year delay between the issuance of the order and the September 201 1 application to the court. The petitioner again requested by letter that the court sign the proposed order and judgment but failed to explain the reasons for the delay. Petitioner then brought the present application for a writ of mandamus from this court directing the civil court to enter a final judgment. Under New York law, mandamus lies to compel the performance of a purely ministerial act w e e there is a clear legal right to the relief sought. Matter of Legal Aid Society o Sullivan County hr f 2 [* 4] v Scheinman, 53 N.Y.2d 12,16 (1 98 1). Mandamus does not lie to compel acts that are entrusted to the respondent official s discretion. Mandamus is available only where the petitioner s right to performance is so clear a to admit of no doubt or controversy. Coastal Oil New York Inc. s v Newton, 231 A.D.2d 55, 57 (lEtDep t1997). In the present case, petitioner is not entitled to a writ of mandamus as the determination by Judge Schneider as to whether to provide petitioner wt an order and judgment was a discretionary ih rather than a ministerial act. It was within the Judge s discretion to decline to sign the proposed order and judgment without an explanation from the petitioner as to the reason for the extensive delay under the particular circumstances of this case -- where petitioner waited over three years f o rm February 2008 to September 201 1 to request an order to be signed by the court, where Petitioner wm present at the day of trial when the court issued a decision on the record and where petitioner never submitted the transcript to the court to be so ordered or requested a separate written order for almost four years. The First Department has specifically held that a so ordered transcript provides an appealable order. See Domansb v Berkovitch, 251 A.D.2d 3 (1 Dep t 1998). In that case, the court held that the court s explicit grant on the record of the plaintiffs request for leave to amend a pleading was binding on the parties even though not reduced to a formal written order and could have been appealed from provided only that defendants had had the relevant portions of the conference transcript so ordered. Id Thus,the decision of the civil court on the record after the trial was binding on Petitioner even though not reduced to a formal written order and petitioner could have appealed the order by obtaining a so ordered copy of the trial transcript at any time. The petitioner could also have submitted a proposed order and judgment to the court at any time after the trial Was 3 [* 5] concluded rather than waiting three years. Under these circumstances, it was within the court's discretion to require an explanation from petitioner before signing the proposed order and judgment over three years later. Based on the foregoing, the petition is denied and the proceeding is dismissed. This constitutes the decision, order and judgment of the court. J.S.C. FILED JUL 112012 NEW YORK COUNTY CLERK'S OFFICE 4

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