Summary
In Eversman v Collodo (88 Misc.2d 86), the Appellate Term, First Department, held that in a nonpayment summary proceeding, the adjournment conditioned upon the payment into court by the tenant of the amount prayed for in the petition was erroneous and tenant was given the right to litigate the merits of the case.
Summary of this case from Parkway Co v. WashingtonOpinion
October 27, 1976
Appeal from the Civil Court of the City of New York, New York County, STANLEY NASON, H.O.
Michael D. Kaufman, Jill Kupferberg, Peter M. Wendt and Nancy E. LeBlanc for appellant.
Goldweber Hershkowitz (Max Goldweber of counsel), for respondent.
Order entered April 22, 1976 (NASON, H.O.) reversed, with $10 costs, motion granted, final judgment vacated, and case remanded to the Housing Part of the Civil Court of the City of New York, County of New York, for proceedings consistent with this decision.
In this nonpayment summary proceeding, it was an improvident exercise of discretion for the court below to condition an adjournment requested by petitioner upon the payment into court by tenant of the amount prayed for in the petition, and to thereafter grant a "default" final judgment in favor of petitioner when tenant did not comply with the order of deposit. Since tenant had not made application for the continuance or otherwise sought the favor of the court, and there is no statutory provision calling for the deposit in the subject circumstances, the right to litigate the merits of the case was erroneously conditioned upon prepayment of the unproven amount claimed as rent (see Hovey v Elliott, 167 U.S. 409; Boddie v Connecticut, 401 U.S. 371, 379; cf. Lindsey v Normet, 405 U.S. 56, 65 with Bell v Tsintolas Realty Co., 430 F.2d 474).
Concur: HUGHES, P.J., GELLINOFF and RICCOBONO, JJ.