Braunsdorf v. Kelleher

In a proceeding pursuant to article 78 of the Civil Practice Act, seeking an order directing the superintendent of housing and buildings of the borough of Queens to issue a certificate of occupancy for certain premises for use as a factory and for other purposes, the petitioner appeals from an order denying her motion for an order (1) reversing a decision, made on May 7, 1953, of a prior motion, (2) granting a final order awarding the relief sought in the petition, and (3) vacating and setting aside the order, made on May 11, 1953, which was 1055 entered on the decision sought to be reversed. Order unanimously affirmed, with $10 costs and disbursements. The order of February 26, 1952, as resettled by the order of April 23, 1952, was a final order and was appealable. That order dismissed the proceedings on the merits (Civ. Prae. Act, § 1296). The omission of a statement that the dismissal was on the merits did not render the order invalid. The Supreme Court, nearly one year after the resettlement of the order, was not obliged by statute or rule of court or of practice to change its decision of February 15, 1952, on which the order of February 26, 1952, was properly entered. Appellant had no legal right to have that decision reversed by the Supreme Court or to have the order of April 23, 1952, vacated and a final order granted, as she sought in the notice of motion of April 6, 1953. Therefore, it cannot be held that the court by the decision of May 7, 1953, and the order of May 11, 1953, improvidently exercised its discretion or abused its power. The Supreme Court could lawfully deny the motion returnable on June 19, 1953, whereby appellant sought to reverse the decision of May 7, 1953, to vacate the order of May 11, 1953, and to obtain a final order. Present — Nolan, P. J., Adel, Wenzel, MacCrate and Schmidt, JJ. [202 Misc. 471.]