Summary
In Jimerson Housing Co. v Butler (102 Misc.2d 423, 424), the Appellate Term, Second Department, unanimously held "It is our opinion that the relationship between the petitioner, a co-operative, and respondent, its stockholder, is that of landlord and tenant to the extent that petitioner may maintain a summary proceeding against the respondent" (citing 1990 Seventh Ave. Co-op Corp. v Edwards, 133 Misc. 831; Esplanade Gardens v Reed, NYLJ, May 9, 1979, p 13, col 3; Brigham Park Coop Apts. v Lieberman, Sec. 4, 158 N.Y.S.2d 135; Susskind v 1136 Tenants Corp., 43 Misc.2d 588).
Summary of this case from Glen Oaks v. BalwaniOpinion
December 3, 1979
Appeal from the Civil Court of the City of New York, Kings County, NORMAN H. SHILLING, J.
Anthony J. Genovesi for appellant.
MEMORANDUM.
Order of the court below ( 97 Misc.2d 563), insofar as it dismissed the petition for lack of subject matter jurisdiction, unanimously reversed, without costs, and matter remanded to the court below for trial.
In this nonpayment summary proceeding, petitioner obtained a final judgment upon respondent's failure to answer. Respondent's motion to vacate this default final judgment was granted by Judge TAVORMINA and the matter was set down for trial. Thereafter, Judge SHILLING apparently reconsidered this motion, vacated the default and dismissed the petition for lack of subject matter jurisdiction.
The reconsideration of this motion was improper because a Judge of co-ordinate jurisdiction may not review an order of a colleague of equal rank in the same case (Matter of Weiss v Commissioner of Off. of Drug Abuse Servs., 64 A.D.2d 768, affd 47 N.Y.2d 835). Nevertheless, the court below, on its own motion, at any time, could dismiss the proceeding if it determined that it lacks subject matter jurisdiction (Robinson v Oceanic Steam Nav. Co., 112 N.Y. 315).
It is our opinion that the relationship between the petitioner, a co-operative, and respondent, its stockholder, is that of landlord and tenant to the extent that petitioner may maintain a summary proceeding against respondent (1990 Seventh Ave. Co-op. Corp. v Edwards, 133 Misc. 831; Esplanade Gardens v Reed, NYLJ, May 9, 1979, p 13, col 3; Brigham Park Co-op. Apts. v Lieberman, 158 N.Y.S.2d 135; see Susskind v 1136 Tenants Corp., 43 Misc.2d 588).
Concur: PINO, P.J., BUSCHMANN and WEINSTEIN, JJ.