Gench v. Manchester Realty Associates

—In a proceeding pursuant to CPLR article 78 to challenge a judicial determination which was made in a civil action, the petitioner appeals from a judgment of the Supreme Court, Queens County (Taylor, J.), dated November 3, 2011, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

The petitioner commenced this proceeding pursuant to CPLR article 78 to challenge a determination of the Civil Court of the City of New York, Queens County, which was affirmed by the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts (see Manchester Realty Assoc. v Gench, 31 Misc 3d 127[A], 2011 NY Slip Op 50451[U] [2011]). The Supreme Court, Queens County, properly denied the petition and dismissed the proceeding, since a proceeding under CPLR article 78 “shall not be used to challenge a determination . . . which was made in a civil action . . . unless it is an order summarily punishing a contempt committed in the presence of the court” (CPLR 7801 [2]). Furthermore, the Supreme Court properly determined that any review of the decision and order of the Appellate Term must be sought in accordance with CPLR 5703. Skelos, J.P, Balkin, Cohen and Miller, JJ, concur.