Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered May 5, 2007. The order, insofar as appealed from as limited by the brief, denied so much of a motion by tenant as sought to vacate a default final judgment of possession and to dismiss the petition, and implicitly denied so much of tenant's motion as sought damages for wrongful eviction.

Order, insofar as appealed from, modified by providing that so much of tenant's motion as sought to vacate the default final judgment and to dismiss the petition is granted, and so much of tenant's motion as sought damages for wrongful eviction is denied without prejudice; as so modified, affirmed without costs.After being evicted pursuant to a default final judgment in this commercial nonpayment summary proceeding, tenant moved to, inter alia, vacate the default final judgment and dismiss the petition, and for damages for wrongful eviction. It is undisputed that the nonpayment proceeding was commenced after an involuntary bankruptcy petition had been filed by tenant on July 11, 2003. Furthermore, the Bankruptcy Court denied an application by landlord for relief from the automatic stay. In these circumstances, the commencement of this nonpayment proceeding and the final judgment entered herein were nullities (see Yen-Ching Chen v Dickerson, 17 Misc 3d 61 [App Term, 9th & 10th Jud Dists 2007] and cases cited therein). Accordingly, so much of tenant's motion as sought to vacate the default final judgment and to dismiss the petition is granted. [*2]

The branch of tenant's motion which sought damages for wrongful eviction is denied without prejudice to tenant's commencement of a plenary action, where the issue can be appropriately addressed.

We pass upon no other issue raised on appeal.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: August 19, 2008