Osborn v. Badie

Full title: Linda Osborn, Respondent, v. James W. Badie, as Administrator of the…

Court: Supreme Court, Appellate Term, Second Dept., 9th & 10th Judicial Districts

Date published: Mar 26, 2018

2018 N.Y. Slip Op. 69018 (N.Y. App. Term 2018)

Opinion

Motion No: 2015-00114 WC

03-26-2018

Linda Osborn, Respondent, v. James W. Badie, as Administrator of the Estate of Claude Badie, and Ottilie Badie, Appellants.

ANTHONY MARANO, P.J.

BRUCE E. TOLBERT

JERRY GARGUILO, JJ.

DECISION & ORDER ON MOTION

Appeal from an order of the Justice Court of the Village of Hastings-On-Hudson, Westchester County, entered July 9, 2014. The appeal was transferred to this court by decision and order on motion of the Appellate Division, Second Judicial Department, dated August 14, 2015.

By order to show cause dated February 9, 2018, the parties were directed to show cause before this court why (1) so much of the appeal as was taken by appellant Ottilie Badie should not be dismissed and so much of the order of the Justice Court entered July 9, 2014 and of all the other proceedings taken in the Justice Court, including the default final judgment entered April 20, 2005, as were against her vacated as nullities on the ground that the Justice Court lacked subject matter jurisdiction over the cause of action against that appellant, and (2) so much of the appeal as was taken on behalf of Claude Badie should not be dismissed as abandoned.

Upon the order to show cause and the papers filed by respondent and appellants in response thereto, it is

ORDERED that the motion is granted, so much of the order of the Justice Court entered July 9, 2014 and of all the other proceedings taken in the Justice Court, including the default final judgment entered April 20, 2005, as were against appellant Ottilie Badie are vacated as nullities on the ground that the Justice Court lacked subject matter jurisdiction over the cause of action against that appellant, and so much of the appeal as was taken on behalf of Claude Badie is dismissed as abandoned.

A review of the record on appeal indicates that appellant Ottilie Badie signed the lease only as a nontenant "co-signatory." Thus, the Justice Court lacked subject matter jurisdiction to adjudicate the claim against her (see Ross Realty v V & A Fabricators, Inc., 42 AD3d 246, 250 [2007] [in a summary proceeding, the court lacks subject matter jurisdiction over a claim for contractual damages]; State Realty, LLC v Ger, 55 Misc 3d 133[A], 2017 NY Slip Op 50439[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

We note that appellants' counsel has previously asserted that the estate of Claude Badie is not a necessary party to the appeal and that the appeal may proceed only on behalf of the surviving party.

ENTER:

Paul Kenny

Chief Clerk