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Supreme Court, Appellate Term, New York.

TOPAZ REALTY CORP., Appellant, v. Eddie MORALES, Respondent.

Decided: July 21, 2005

Present:  PESCE, P.J., PATTERSON and BELEN, JJ. Jack L. Glasser, P.C., Jamaica, for appellant. Eddie Morales, respondent pro se.

Appeal by landlord from an order of the Civil Court, Kings County (O. Chin, J.), dated February 18, 2004, granting occupant's motion seeking, in effect, to direct landlord's attorney to release $7,600 being held in escrow to occupant.

Order unanimously reversed without costs and occupant's motion denied without prejudice to occupant seeking relief in a proper forum.

Pursuant to a stipulation settling this RPAPL 713(11) summary proceeding, landlord deposited $7,600 into escrow with its attorney.   The stipulation stated that occupant was entitled to the $7,600 “provided [he] vacates freely and voluntarily by January 14, 2004, leaves apt. broom clean, removes all personalty and leaves no occupants or persons claiming possession thereof and causes no damage to apt. other than ordinary wear and tear.”   The stipulation also provided that occupant would notify landlord of his intention to vacate at least 24 hours before he vacated so that landlord's agent could inspect and, upon occupant's return of the key to landlord's agent, the agent was to give him a receipt to give to landlord's attorney.   In addition, the stipulation provided that the court would retain jurisdiction over “the res of the escrow” to resolve any disputes as to the entitlement thereto.   Upon the instant motion, occupant seeks, in effect, to enforce the stipulation, claiming that he did not give landlord the key because landlord refused to give him a receipt.   Landlord opposes the motion, asserting that occupant failed to comply with the stipulation.   After oral argument, the Housing Court found, without having heard any sworn testimony, that occupant had made “every effort” to return the key to landlord, and directed landlord's attorney to release the funds held in escrow to occupant.

 “Except for proceedings for the enforcement of housing standards (CCA 110 [a][4];  203[o] ) and applications for certain provisional remedies (CCA 209 [b] ), the New York City Civil Court may not grant injunctive relief” (Broome Realty Assoc. v. Sek Wing Eng, 182 Misc.2d 917, 703 N.Y.S.2d 360 [App. Term, 1st Dept. 1999];  see Lencal Realty Corp. v. Benn, 1 Misc.3d 134(A), 2003 N.Y. Slip Op. 51640[U], 2003 WL 23199951 [App. Term, 2d & 11th Jud. Dists.] ).   Inasmuch as the order directing landlord's attorney to release the funds being held in escrow was equitable and injunctive in nature (Stanton v. Miller, 58 N.Y. 192, 200 [1874];  Iervolino v. Best Built Homes Holding Corp., 56 Misc.2d 343, 288 N.Y.S.2d 724 [1968];  55 N.Y. Jur.2d, Escrows § 40;  see Wren Props. of Nassau v. Taveras, N.Y.L.J., Oct. 4, 1999 [App. Term, 2d & 11th Jud. Dists.] ) and not within the limited equitable and injunctive powers of the Civil Court (Goldstein v. Stephens, 118 Misc.2d 614, 463 N.Y.S.2d 137 [App. Term, 1st Dept. 1983];  see North Waterside Redevelopment Co. v. Febbraro, 256 A.D.2d 261, 682 N.Y.S.2d 202 [1st Dept. 1998];  Bennigan's of New York, Inc. v. Great Neck Plaza, L.P., 223 A.D.2d 615, 636 N.Y.S.2d 835 [2d Dept. 1996];  19 W. 45th Street Realty v. Darom Elec. Corp., 233 A.D.2d 184, 650 N.Y.S.2d 1 [1st Dept. 1996];  Parker v. Rich, 140 A.D.2d 177, 527 N.Y.S.2d 424 [1st Dept. 1988];  Matter of Hellman v. Ploss, 46 A.D.2d 658, 359 N.Y.S.2d 823 [2nd Dept. 1974];  Hotel New Yorker Pharmacy v. New Yorker Hotel Corp., 40 A.D.2d 967, 338 N.Y.S.2d 697 [1st Dept. 1972];  1 Carmody-Wait 2d § 2:161;  but see PIK Record Co. v. Eckstein, 226 A.D.2d 122, 640 N.Y.S.2d 49 [1st Dept. 1996] [allowing the relief without discussing the issue of subject matter jurisdiction];  Future 40th St. Realty v. Mirage Night Club, 2002 N.Y. Slip Op. 50243[U], 2002 WL 1448861 [App. Term, 1st Dept.] [same] ), the order was not within the jurisdiction of the court to make.   Occupant is therefore limited to seeking to enforce the stipulation in the Supreme Court, which has equitable jurisdiction, or instituting an action in Civil Court or Supreme Court seeking money damages for breach of the stipulation (e.g. Takayama v. Schaefer, 240 A.D.2d 21, 669 N.Y.S.2d 656 [2nd Dept. 1998], revg. on other grounds N.Y.L.J., July 11, 1996 [App. Term, 2d & 11th Jud. Dists.];   see generally 105 N.Y. Jur.2d, Trial § 262).

 We incidentally note that it was error for the Housing Court to determine disputed issues of fact without holding a hearing.

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