| Carter v Johnson |
| 2011 NY Slip Op 04403 [84 AD3d 1141] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Evelyn D. Carter et al., Appellants, v Phyllis B. Johnson,Respondent, et al., Defendant. |
—[*1] John F. Murphy III, Hopewell Junction, N.Y., for respondent.
In an action, inter alia, for the partition of real property, the plaintiffs appeal (1) from somuch of an order of the Supreme Court, Kings County (Solomon, J.), dated September 14, 2010,as, upon denying a motion by the defendant Phyllis B. Johnson to vacate a judgment dated June17, 2010, which is in favor of the plaintiffs and against her in the principal sum of $200,000, suasponte "stayed and enjoined" execution of the judgment by sale of the subject property "for solong as defendant Johnson resides in the premises and until further order of the court;" and (2), aslimited by their brief, from so much an order of the same court, dated December 12, 2010, asdenied that branch of their motion which was for leave to renew.
Ordered that on the Court's own motion, the notice of appeal from so much of the order as,sua sponte, "stayed and enjoined" execution of the judgment by sale of the subject property "forso long as defendant Johnson resides in the premises and until further order of the court" isdeemed to be an application for leave to appeal from that portion of the order, and leave to appealis granted (see CPLR 5701 [c]); and it is further,
Ordered that the order dated September 14, 2010, is reversed insofar as appealed from, on thelaw, and that portion of the order providing that the plaintiffs are "stayed and enjoined fromexecuting the judgment by sale of [1235 Dean Street, Brooklyn, New York] for so long asdefendant Johnson resides in the premises and until further order of this court" is vacated; and itis further,
Ordered that the appeal from the order dated December 12, 2010, is dismissed as academic inlight of our determination of the appeal from the order dated September 14, 2010, and it isfurther,
Ordered that one bill of costs is awarded to the plaintiffs.
During the course of this action, inter alia, for the partition of real property, the plaintiffsentered into a stipulation of settlement with the defendant Phyllis B. Johnson wherein Johnsonagreed, among other things, to purchase the plaintiffs' share in the subject property. However,Johnson failed to tender performance, and the plaintiffs thereafter entered a judgment [*2]against her in the principal sum of $200,000. Johnson subsequentlymoved by order to show cause to vacate this judgment. In the resulting order, the Supreme Courtdenied vacatur, but sua sponte granted relief which was not requested by the movant, namely, it"stayed and enjoined [the plaintiffs] from executing the judgment by sale of [the subjectproperty] for so long as defendant Johnson resides in the premises and until further order of thiscourt."
Pursuant to CPLR 2214 (a), an order to show cause must state "the relief demanded and thegrounds therefor." "The court may grant relief, pursuant to a general prayer contained in the. . . order to show cause, other than that specifically asked for, to such extent as iswarranted by the facts plainly appearing on the papers on both sides" (HCE Assoc. v 3000Watermill Lane Realty Corp., 173 AD2d 774, 774 [1991]).
In the case at bar, Johnson never requested the stay relief granted by the Supreme Court.Moreover, the order to show cause contained no general prayer for relief, and even requested thatthe Supreme Court "appoint[ ] a Judicial Hearing Officer . . . with regard topartitioning the property." Given such a request, the Supreme Court's decision to, in effect, grantto Johnson what was essentially a life estate in the property was not only unwarranted by thefacts, but was inconsistent with the relief sought in the order to show cause (see e.g. HunterSports Shooting Grounds, Inc. v Foley, 73 AD3d 702, 705 [2010]; Singh v HobartCorp., 302 AD2d 444, 445 [2003]; cf. Shaw v RPA Assoc., LLC, 75 AD3d 634, 635[2010]). It is also clear that this unrequested relief operated to the prejudice of the plaintiffs(see HCE Assoc. v 3000 Watermill Lane Realty Corp., 173 AD2d 774 [1991]).Accordingly, it was error to grant such relief.
In light of our conclusion herein, we need not reach the plaintiffs' remaining contentions, andtheir appeal from the denial of that branch of their motion which was denominated as leave torenew has been rendered academic. Angiolillo, J.P., Dickerson, Belen and Sgroi, JJ., concur.