Appeal from an order of the Civil Court of the City of New York, Kings County (Thomas M. Fitzpatrick, J.), entered July 12, 2011. The order denied tenant's motion, in effect, to set aside so much of a prior order of the same court as, upon restoring tenant to possession, had required her to pay marshal and legal fees in the sum of $2,860.50.

ORDERED that the order is affirmed, without costs.

In this nonpayment proceeding, a default final judgment was entered on February 28, 2011. Tenant was evicted on March 24, 2011. Later that day, tenant paid the arrears, and, by order entered March 28, 2011, tenant was restored to possession. The March 28, 2011 order directed tenant to pay marshal and legal fees in the sum of $2,860.50 within 30 days, failing which landlord could move to re-execute the warrant. Thereafter, tenant moved, in effect, to set aside so much of the order as required her to pay marshal and legal fees, alleging that the eviction had been unlawful because there was no non-military affidavit on file and that her son had advised the marshal at the time of the eviction that he was in the military and had shown the marshal his military identification. The Civil Court denied tenant's motion, finding that tenant had failed to demonstrate that the eviction was unlawful. [*2]

In our view, the Civil Court properly denied tenant's motion, as the record contains a non-military affidavit, dated February 14, 2011, that was included in landlord's warrant requisition. Moreover, in opposition to tenant's motion, landlord established that tenant's son's active-duty status had ended on October 1, 2010. Tenant's other claim on appeal is outside the record and will not be considered.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 01, 2013