APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
| RITA APOLLO-WALLACE, Respondent, -against- DR. STEPHEN FINGER, Appellant. |
DECISION
On the court's own motion, motion by defendant-appellant to vacate the order of this court dated May 4, 2004 which dismissed his appeal from an order of the Civil Court, Kings County entered May 12, 2003 as academic in light of a subsequent order of said court entered March 12, 2004, and motion by plaintiff-respondent for an extension of time to submit opposition papers to defendant-appellant's motion are consolidated for purposes of disposition.
Plaintiff-respondent's motion for an extension of time to submit opposition papers granted and papers deemed submitted. Defendant-appellant's motion to vacate the order of this court dated May 4, 2004 which dismissed his appeal as academic granted as said appeal is no longer academic in light of this court's order of April 13, 2005, which reversed the subsequent order of the Civil Court, Kings County entered March 12, 2004. Upon such vacatur, the appeal is decided as follows:
Appeal by defendant from an order of the Civil Court, Kings County (S. Hinds-Radix, J.), entered May 12, 2003, which denied defendant's motion to dismiss the complaint.
Order unanimously reversed without costs and defendant's motion to dismiss the complaint granted unless, within 30 days of the date of the order entered hereon, plaintiff serves and files in the court below a written stipulation, signed by her, consenting to reduce the ad damnum clause of her complaint so as to bring the cause
of action within the court's jurisdiction; in the event that plaintiff so stipulates, the order is affirmed without costs.
In his motion to dismiss the complaint, defendant contended that plaintiff failed to state a cause of action and that the court lacked subject matter jurisdiction. The plaintiff's summons and endorsed complaint in this personal injury action stated, in part, as follows:
"Other PAIN & SUFFERING $25,000
Other EMOTIONAL DAMAGES $25,000
Other PHYSICAL DAMAGES $25,000."
Attached to the endorsed complaint is an application for a pro se summons in which plaintiff stated that the reason for her claim was damage caused to her "person" as the result of a surgical operation.
While a plaintiff may assert several causes of action in a complaint where each cause of action would be within the monetary jurisdictional limit of the court if sued upon separately (CCA 211), in the case at bar, plaintiff stated only a single cause of action since the facts alleged indicate one primary right of the plaintiff and one wrong done by the defendant which involved that right (see Payne v N.Y., Susquehanna & Western R.R. Co., 201 NY 436 [1911]). Inasmuch as the complaint demands $75,000 in damages, it exceeds the $25,000 monetary jurisdictional limit of the Civil Court (CCA 202). Thus, the order denying defendant's motion to dismiss the complaint is reversed and defendant's motion granted unless plaintiff stipulates, in the manner set forth above, to reduce the ad damnum clause so as to bring her claim within the Civil Court's monetary jurisdictional limit (Campbell v Fairfield Presidential Assoc., 5 Misc 3d 130[A], 2004 NY Slip Op 51246[U] [App Term, 2d & 11th Jud Dists]).
_________________________________
Presiding Justice, Appellate Term
_________________________________
Associate Justice, Appellate Term
_________________________________
Associate Justice, Appellate Term
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| 7302 NORTHERN BOULEVARD LLC, Respondent, -against- JOSE GARCIA ONOFRE SILVA D/B/A ANTIQUE THRIFT SHOP, Appellants, -and- "XYZ CORP.", Undertenant. |
DECISION
Motion by tenants-appellants for a stay is denied.
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
| GLEN GREEN ASSOCIATES LLC, Appellant, -against- DOLPHIN FITNESS (AMITYVILLE) INC., Respondent. |
DECISION
Motion by landlord-appellant for a stay is denied without prejudice to renewal upon proper notice.
Absent is an affidavit of service showing service of the motion papers.
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| 67-25 DARTMOUTH ST. CORP., Respondent, -against- JONATHAN SYLLMAN, Appellant. |
DECISION
Motion by tenant-appellant for a stay is granted on condition that within 10 days from the date of the order hereon tenant deposit in the court below the amount of the judgment together with any and all arrears in rent and/or use and occupancy from July 1, 2005, at the rate previously payable as rent, and upon the further condition that tenant perfect the appeal by November 4, 2005; upon failure to comply with either condition, the stay is vacated without further order of this court. Tenant shall continue to pay use and occupancy to landlord as it becomes due. Upon failure of tenant to make a required payment for use and occupancy landlord may move upon 3 days' notice to vacate the stay. Tenant shall file with this court proof of deposit of the judgment and any and all arrears in rent and/or use and occupancy within one business day after such deposit.
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| MARILYN MATALON, Appellant, -against- BELLROSE ANIMAL HOSPITAL, INC., Respondent. |
DECISION
Motion by defendant-respondent to dismiss appeal for failure to prosecute is granted.
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
| LEONARD SACCHERI, JR., Respondent, -against- CATHEDRAL PROPERTIES CORP., Appellant. |
DECISION
That branch of the motion by tenant-respondent to dismiss appeal for failure to prosecute is denied on condition that the appeal is perfected by December 2, 2005; otherwise motion granted and appeal dismissed.
That branch of the motion to vacate automatic stay is denied.
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| 67-70 ASSOCIATES, LLC, Respondent, -against- MUSHARAF HUSSAIN - Tenant SHAKIL AHMAD - Subtenant-Appellant "JOHN DOE" & "JANE DOE" - Subtenants. |
DECISION
Motion by subtenant-appellant for a stay pending appeal is denied.
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| 621 LEFFERTS AVE, LLC, Respondent, -against- SHALOM WAGSHUL, Appellant. |
DECISION
Motion by tenant-appellant to stay all proceedings pending determination of the appeal is held in abeyance and matter remitted to the Civil Court, Kings County for a hearing to be held within 30 days of the date of this order to determine whether tenant-appellant is an adult incapable of adequately defending his rights (CPLR 1201) and, if so, for the appointment of a guardian ad litem pursuant to CPLR 1202. The court shall cause its order and decision to be filed with the clerk of this court with all deliberate speed.
On the court's own motion, appeal by tenant-appellant held in abeyance pending the filing by the lower court with the clerk of this court of its order and decision following said hearing.
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
| CHARLES WASHINGTON and MARLENE WASHINGTON, Plaintiffs, -against- GIOVANNI CULOTTA, a/k/a JOHN CULOTTA Defendant, CITY OF NEW YORK DEPARTMENT OF BUILDINGS, Nonparty-appellant. -------------------------------------------------------------------------x BISI GEORGE, Plaintiff, -against- GIOVANNI CULOTTA, a/k/a JOHN CULOTTA, Defendant, CITY OF NEW YORK DEPARTMENT OF BUILDINGS, Nonparty-appellant. |
DECISION
That branch of the motion by nonparty City of New York Department of Buildings seeking relief pursuant to CPLR 5704 (b) denied.
That branch of the motion by nonparty City of New York Department of Buildings seeking leave to appeal to this court from so much of an order of the Civil Court of the City of New York, Richmond County (P. Straniere, J.), dated July 21, 2005, as sua sponte directed it to appear for a hearing on August 29, 2005 granted. Movant is directed to perfect the appeal by November 3, 2005.
That branch of the motion by nonparty City of New York Department of Buildings seeking a stay pending determination of appeal denied as unnecessary (see CPLR 5519 [a] [1]).
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
| JAMES LAMAR and VERONICA LAMAR, Appellants, -against- ISLAND ORTHODONTICS and DR. SCOTT FRIEDMAN, Respondents. |
DECISION
That branch of the motion by defendants-respondents to dismiss appeal is granted.
That branch of the motion to release funds deposited with the court below is denied without prejudice to moving for such relief in the court below.
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| 315 BERRY STREET CORPORATION, Appellant, -against- HANSON FINE ARTS, ERIK HANSON, PINOTTI PRODUCTIONS, "JOHN" PINOTTI and ZOETHECUS INTERNATIONAL, Tenants, CLAYTON HUDNALL, "JOHN DOE" and "JANE DOE", Undertenants, JENNIFER KUIPERS, SEAN RENBOLD and MIYUKI SHIBUYA, Respondents. |
DECISION
Motion for leave to reargue or, in the alternative, for leave to appeal to the Appellate Division denied.
When this court decided the appeal in this matter, it was fully aware of the ruling in Wolinsky v Kee Yip Realty Corp. (2 NY3d 487 [2004]) that, because the Loft Law window period was closed, illegal loft conversions that did not fall within that window period could not become subject to rent stabilization, and of the import of said decision, as subsequently set forth in Gloveman Realty Corp. v Jefferys (18 AD3d 812 [2d Dept 2005]), that this rule may apply even in areas where the zoning resolution allows residential use as of right. However, it was the opinion of this court that Wolinsky has
no applicability to a loft space, in a building built before 1974, that had been subject to the Loft Law and had become exempt from that Law by virtue of a buyout of rights and improvements (Multiple Dwelling Law § 286 [6], [12]) pursuant to a declaration that the space would be used solely for nonresidential purposes (NY City Loft Board Regulations [29 RCNY] § 210 [c]). Since Gloveman did not involve such a space, it is not to the contrary.
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| A.B. MEDICAL SERVICES PLLC D.A.V. CHIROPRACTIC P.C. DANIEL KIM'S ACUPUNCTURE P.C. ROYALTON CHIROPRACTIC P.C. a/a/o Elsie Pena and Belkis Pena, Respondents, -against- SPECIALTY NATIONAL INSURANCE COMPANY, Appellant. |
DECISION
Motion by appellant to consolidate appeals numbered 2004-1440 K C and 2005-274 K C granted and consolidated appeal is assigned number 2004-1440 K C.
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| FRIBEN REALTY CORP., Respondent, -against- THERON DORDON, Appellant, -and- GERI DORDAN and WILLIAM DORDAN, Tenants. |
DECISION
That branch of the motion by respondent seeking leave to file a respondent's brief granted and said brief shall be filed by it within 21 days of the date of the order hereon.
That branch of the motion seeking to deem the respondent's brief as having already been served upon appellant also granted.
Appellant, if so advised, may serve and file a reply brief within 14 days of the date of filing of the respondent's brief.
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
| VALLEY DREAM HOUSING COMPANY, INC., Appellant, -against- DONNA LUPO, Respondent. |
DECISION
On the court's own motion, appeal held in abeyance and matter remitted to the District Court, Nassau County for a hearing, to be held within 30 days of the date of the order hereon, to determine whether occupant-respondent is an adult incapable of adequately defending her rights (CPLR 1201) and, if so, for the appointment of a guardian ad litem pursuant to CPLR 1202. The District Court shall cause its order and decision to be filed with the clerk of this court with all deliberate speed. In the event a guardian ad litem is appointed, said guardian shall, within 30 days after said appointment, notify this court whether he wishes to ratify the proceedings held heretofore and join in the previously submitted respondent's brief or elects to pursue some other course.
In view of the parties' stipulation as to occupant-respondent's mental status, a hearing should be held to determine whether occupant-respondent is incapable of protecting her own rights (see Brewster v John Hancock Mut. Life Ins. Co., 280 AD2d 300 [2001]; Shad v Shad, 167 AD2d 532 [1990]).
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| A.B. MEDICAL SERVICES PLLC D.A.V. CHIROPRACTIC P.C. DANIEL KIM'S ACUPUNCTURE P.C. ROYALTON CHIROPRACTIC P.C. a/a/o Elsie Pena and Belkis Pena, Respondents, -against- SPECIALTY NATIONAL INSURANCE COMPANY, Appellant. |
DECISION
Motion by appellant to consolidate appeals numbered 2004-1440 K C and 2005-274 K C granted and consolidated appeal is assigned number 2004-1440 K C.
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| AVERY CHIROPRACTIC, P.C. Assignee of SHIN YOUNG JANG, NORTHSIDE ACUPUNCTURE SERVICES, P.C. Assignee of HYE KYUNG LEE, METRO KEW, INC. Assignee of ADRIANA AVILES, Respondent, -against- STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellant. |
DECISION
Motion by defendant-appellant seeking, in essence, to vacate dismissal of the appeal is granted on condition that the appeal is perfected by November 4, 2005; otherwise motion denied.
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
| FIRST HELP ACUPUNCTURE a/a/o ANA GUERRERO, Respondent, -against- STATE FARM INS. CO., Appellant. |
DECISION
Motion by defendant-appellant, in essence, to vacate dismissal of the appeal is granted on condition that the appeal is perfected by November 4, 2005; otherwise denied.
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
| NEIGHBORHOOD RESTORE HDFC/BROOKLYN NEIGHBORHOOD IMPROVEMENT ASSOCIATES, INC., Respondent, -against- SUE SIMMONDS, Appellant, -and- PATRICIA SIMMONDS, Respondent, -and- JOHN DOE & JANE DOE, Undertenants. |
DECISION
Motion by tenant-appellant for reconsideration of this court's order dated June 24, 2005 and for a stay of all proceedings pending determination of appeal denied in all respects.