Opinion
March 16, 1971
Motion for leave to appeal to the Court of Appeals from the order of this court, entered on February 1, 1971 ( 35 A.D.2d 380), affirming (two Justices dissenting) a determination of the Appellate Term entered on May 22, 1970, which (1) reversed a judgment of the Civil Court of the City of New York awarding possession of premises to landlord in a holdover proceeding and (2) ordered a new trial, is granted. In obtaining leave to appeal to this court from the determination of the Appellate Term, the landlord stipulated to judgment absolute. (CPLR 5703, subd. [a].) This court in affirming granted judgment absolute against the landlord, and remanded the matter to the Civil Court to determine an appropriate rental for the premises in issue. Since judgment absolute was granted, there is doubt as to whether this court has power to permit further review in the Court of Appeals (see Vieser v. Bellows, 239 N.Y. 622; Hoffman v. Fraad, 249 N.Y. 537; cf. Pfister v. Coopersmith, 297 N.Y. 966; United Sec. Corp. v. Suchman, 306 N.Y. 858; 7 Weinstein-Korn-Miller, N.Y. Prac., par. 5602.16, pp. 56-69). If such power exists, we exercise our discretion to grant leave to appeal. Ultimate determination of our power must await a direct application in the Court of Appeals to dismiss the appeal.
Concur — Capozzoli, J.P., Markewich, Nunez, McNally and Tilzer, JJ.