Opinion
2007-1016 W C.
Decided on November 19, 2008.
Appeals from orders of the Justice Court of the Town of New Castle, Westchester County (Lawrence D. Lenihan, J.), dated, respectively, August 24, 2006 and January 24, 2007. The order dated August 24, 2006, after a hearing, directed the release of funds from a security deposit being held in escrow by petitioners' attorney. The order dated January 24, 2007 granted petitioners' motion to "dismiss" the appeal from the order dated August 24, 2006 as untimely.
PRESENT: RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ.
On the court's own motion, the notice of appeal from the order dated August 24, 2006 is deemed an application for leave to appeal, and leave to appeal is granted.
Order dated August 24, 2006 reversed without costs and without prejudice to the parties seeking appropriate relief in a proper forum.
Appeal from order dated January 24, 2007 dismissed.
At the outset, we note that tenant did not oppose petitioners' motion in the Justice Court seeking to dismiss the appeal from the order dated August 24, 2006. Accordingly, tenant's appeal from the order dated January 24, 2007 granting petitioners' motion is dismissed on the ground that no appeal lies by a defaulting party. We note, however, that the order dated January 24, 2007 is void as "[t]he power to dismiss an appeal is resident exclusively in the appellate court" ( Matter of Johnson, 258 App Div 750, 751; see 10A Carmody-Wait 2d § 70:306, at 259).
The parties settled this holdover proceeding by a so-ordered stipulation which provided for the entry of a final judgment of possession in favor of petitioners. The stipulation also provided that petitioners could "deduct" certain sums from tenant's $5,800 security deposit, which was being held in escrow by petitioners' attorney. After a hearing, the Justice Court directed the release of $1,410.36 ($1,067.36 principal and $343 interest) of the funds to tenant, and granted the release of the remaining $4,732.64 to petitioners. Tenant appeals, in essence, on the ground of inadequacy.
"[A]n order directing [a] landlord's attorney to release . . . funds being held in escrow [is] equitable and injunctive in nature," and therefore it is not within the limited equitable and injunctive powers of the Justice Court (NY Const art VI, § 16 [d]; § 17 [a];
see Yaakov v Kupershalayak , 17 Misc 3d 129 [A], 2007 NY Slip Op 51968[U] [App Term, 2d 11th Jud Dists 2007]; World Realty Corp. v Consumer Sales, Inc. , 9 Misc 3d 136[A], 2005 NY Slip Op 51696[U] [App Term, 9th 10th Jud Dists 2005]; Topaz Realty Corp. v Morales , 9 Misc 3d 27 [App Term, 2d 11th Jud Dists 2005]). In view of the foregoing, the order dated August 24, 2006 is reversed without prejudice to the parties seeking appropriate relief in a proper forum.
Rudolph, P.J., McCabe and Scheinkman, JJ., concur.