CPLR R. 2214 Motion papers; service; time
Carter v Johnson, 2011 NY Slip Op 04403 (App. DIv., 2nd 2011)
During the course of this action, inter alia, for the partition of real property, the plaintiffs entered into a stipulation of settlement with the defendant Phyllis B. Johnson wherein Johnson agreed, 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 against her in the principal sum of $200,000. Johnson subsequently moved by order to show cause to vacate this judgment. In the resulting order, the Supreme Court denied 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 subject property] for so long as defendant Johnson resides in the premises and until further order of this court."
Pursuant to CPLR 2214(a), an order to show cause must state "the relief demanded and the grounds 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 is warranted by the facts plainly appearing on the papers on both sides" (HCE Assoc. v 3000 Watermill Lane Realty Corp., 173 AD2d 774, 774).
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 that the Supreme Court "appoint[ ] a Judicial Hearing Officer . . . with regard to partitioning the property." Given such a request, the Supreme Court's decision to, in effect, grant to Johnson what was essentially a life estate in the property was not only unwarranted by the facts, but was inconsistent with the relief sought in the order to show cause (see e.g. Hunter Sports Shooting Grounds, Inc. v Foley, 73 AD3d 702, 705; Singh v Hobart Corp., 302 AD2d 444, 445; cf. Shaw v RPA Assoc., LLC, 75 AD3d 634, 635). 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). Accordingly, it was error to grant such relief.
In light of our conclusion herein, we need not reach the plaintiffs' remaining contentions, and their appeal from the denial of that branch of their motion which was denominated as leave to renew has been rendered academic.