| Linda Osborn v James W. Badie, As Adminstrator of Estate of Claude Badie, & Ottilie Badie |
| Motion No: 2015-00114 WC |
| Slip Opinion No: 2018 NY Slip Op 64412(U) |
| Decided on February 9, 2018 |
| Appellate Term, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
of the State of New York for the 9th & 10th judicial Districts
ANTHONY MARANO, P.J.
BRUCE E. TOLBERT
JERRY GARGUILO, JJ.
ORDER TO SHOW CAUSE
| Linda Osborn, Respondent, v James W. Badie, as Adminstrator of the Estate of Claude Badie, and Ottilie Badie, Appellants. |
Appeal from an order of the Justice Court of the Hastings-On-Hudson, Westchester County, entered July 9, 2014.
On the court's own motion, it is
ORDERED that the parties are directed to show cause before this court why (1) so much of the above-entitled appeal as was taken by appellant Ottilie Badie should not be dismissed and so much of the order of the Justice Court entered July 9, 2014 and of all the other proceedings taken in the Justice Court, including the default final judgment entered April 20, 2005, as were against her vacated as nullities on the ground that the Justice Court lacked subject matter jurisdiction over the cause of action against that appellant, and (2) so much of the appeal as was taken on behalf of Claude Badie should not be dismissed as abandoned, by filing an affidavit or affirmation on those issues with the Clerk of this court on or before March 5, 2018; and it is further,
ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this order to show cause on the parties and/or their attorneys by regular mail.
A review of the record on appeal indicates that appellant Ottilie Badie signed the lease, not as tenant, but only as "co-signatory," and that she was named in this nonpayment proceeding only as "co-signer." Inasmuch as, in a nonpayment proceeding, the court lacks subject matter jurisdiction to adjudicate a claim for a debt owed by a guarantor to the landlord (see State Realty, LLC v Ger, 55 Misc 3d 133[A], 2017 NY Slip Op 50439[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), the parties are directed to show cause why so much of the appeal as was taken by appellant Ottilie Badie should not be dismissed and all the proceedings taken against her in the Justice Court vacated as nullities. In addition, inasmuch as counsel representing the interests of the deceased Claude Badie has previously advised this court that he is not interested in continuing so much of the appeal as was taken on his behalf, the parties shall also show cause why that portion of the appeal should not be dismissed as abandoned.
ENTER:
Paul Kenny
Chief Clerk