It appears that while the decedent was alive and during the matrimonial action, the petitioner was awarded temporary alimony. The right to such payment, however, ceased upon the death of the decedent and termination of that action. The proceedings in this court based upon the issue of <mask> have been termed "posthumous matrimonial trials”. (See Matter of Lamos, 63 Misc 2d 840.) A surviving spouse has no right to any temporary alimony in such proceedings and no right, according to respondents, to any advance payment from the estate for her support if her status is challenged. While a restrictive view of the wording of SCPA 2102 (subd 5) might support such a position, the court is of the opinion that it may *718in its discretion authorize an advance payment, when the question of status is at issue, at least where the alleged surviving spouse is willing to post a refunding bond. (Cf. EPTL 11-1.5; Matter of Brodin, 32 Misc 2d 651.)


It is therefore the decision of this court that in the absence of other circumstances making applicable one of the statutory exceptions, the consent of the natural father is mandatory. The petitioners shall be given the opportunity to prove allegations of <mask> by the said father in order to overcome this requirement. Notice to the natural father shall be given in such manner as shall be directed by this court upon application by the petitioners.


They deny (if that were material) that they ever received notice from the appellant of his intention to abandon the agreement, until after the three first instalments became due. And they swear, that instead of neglecting to fulfil the contract on their part, as the bill charges, they commenced the performance of the agreement immediately after it was made; that they employed twenty workmen besides themselves, in manufacturing the machinery; that they prosecuted the work in good faith; and that, at the #time when the appellant gave them notice of <mask>, (1st of August, 1815,) they had actually expended in labor and materials, for that machinery, upwards of 3,000 dollars; and which had so depreciated, as not to be worth more than 400 dollars, at the time of filing their answers. The injustice and hardship complained of in the bill is, that White, Taylor &f White were taking an unfair advantage, and abusing their legal rights under the independent covenants, by suing for the three first instalments, without having performed any part of the contract, and not having earned any thing, as a consideration or equivalent for those in-stalments : this was an essential and indispensable allegation in the bill, without which no injunction would have been granted ; the prayer for an injunction would have contained no equity, if the bill had not charged the fact, that White, Taylor &f White had not proceeded in the execution of the agreement pari passu with the stipulated payments. The answers are, therefore, on that point, strictly responsive to the bill; and they positively, explicitly, and circumstantially, deny that allegation. The respondents confess their insolvency ; but swear, that it has been occasioned solely by the appellant himself, in refusing to fulfil that contract. These answers we are bound to take as true, in respect to the injunction, in this stage of the cause; and if so, the right of these respondents to recover 1,900 dollars, with interest, as established at law, seems to me to be perfectly consonant with the principles of equity.


Has the petitioner, the adopted child, the right to challenge the original order and obtain its vacation? It appears to me that inasmuch as the child having been under the age of fourteen when the adoption order was granted, and there is no requirement by statute for her consent to the adoption, she cannot be a party and particularly an instituting party in a proceeding to vacate an order of adoption involving a failure of notice, actual or constructive, to a natural parent or a failure of proof of <mask> by said parent.


Mendes & Mount had a right to continue their test of the law and to obtain a ruling on their position from the highest court of this State. Under the circumstances, did the <mask> of further appeals following the granting of the motion to dismiss by the Appellate Division affect their posture? I think not. In the spring and summer of 1981, when the defendant’s appeals were dismissed, the then-current average prime rate was even higher (19%; 20.5%) than the average prime rate during the period encompassed by the two judgments involved which were the basis for plaintiff’s damage claim for loss of interest. If, as plaintiff argued, delay was the defendants’ goal in order to give them the opportunity to earn more on the withheld rents than the interest rates allowed by the court, then the defendants’ decision not to appeal further is completely at odds with this allegation. The more likely inference is that the decision was reached after their counsel assessed the likelihood of success on further appeals as against all the associated costs.


The answer and waiver which plaintiff admits signing is entitled “ In the County Court of Chilton County, Alabama, In Equity ”, and denies the entire bill of complaint. This complaint which she denies alleges the complainant was a resident citizen of Chilton County, Alabama, and had been for a period of time required by law for divorce, and that respondent was a nonresident of the State of Alabama with her last known address in Canton, New York. This complaint also alleges a separation of the parties on May 7,1958 and demands judgment for divorce on the ground of <mask>.


The principle was first stated in Halberstadt v New York Life Ins. Co. (194 NY 1, 10-11), where the court sought to set forth a single, comprehensive rule for determining the sufficiency of a prior termination. When the court examined the facts of the then existing cases, it found that the prior criminal terminations, therein, fell within two categories, which were characterized by the following sufficiency rules: "The first one is that where a criminal proceeding has been terminated in favor of the accused by judicial action of the proper court or official in any way involving the merits or propriety of the proceeding or by a dismissal or discontinuance based on some act chargeable to the complainant as his consent or his withdrawal or <mask> of his prosecution, a foundation in this respect has been laid for an action of malicious prosecution. The other and reverse rule is that where the proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties or solely by the procurement of the accused as a matter of favor or as the result of some act, trick or device preventing action and consideration by the court, there is no such termination as may be availed of for the purpose of such an action.” In an effort to distinguish the "obvious” differences between the two categories, the court sets forth the subject principle. This principle, when applied in its original context, would bar only those cases which fall within the second category, and this the court believes was its intent. The rationale for this is apparent, for in such cases the circumstances of the prior termination implies probable cause and the accused should not be allowed to benefit therefrom.


Furthermore, the failure to use the remaining property upon completion of the roadway and installation of its appurtenances constitutes, after 45 years, an <mask> of such property for any further easement purposes. Since abandonment can extinguish an entire easement, it can likewise extinguish such portion of an easement which becomes surplusage to the intended and executed purpose of the grant. (Norris Hoffman, 133 App Div 596, affd 197 NY 578; Small v Levitt, 110 NY 595; Wilson v Ford, 148 App Div 307.) The *467actual use has, in this instance, defined the extent of the easement. (People v Sutherland, 252 NY 86; Walker v Caywood, 31 NY 51; Foster v Webster, 8 Misc 2d 61.)


The argument of the State Tax Commission that shortly after the death of her husband, Mrs. Daly established her domicile at No. 725 Fifth avenue, New York city, that she abandoned the matrimonial domicile in Anaconda, Montana, and treated the house at Hamilton, Montana as a mere country home finds no support in the evidence. The shift from the principal place of residence from Anaconda to Hamilton, Montana, is inconsequential. By no *946affirmative act or decisive declaration was there any <mask> of the State of Montana as the place of her legal residence, whether between the period from 1900 to 1907 or in any subsequent year to the time of her death. !


No objection having been made to the proposed distribution *336of gifts pursuant to paragraph Two of the will, the decree on an accounting may direct such distribution. No objection having been made to the statement in the schedule of proposed gifts that the family portraits have no value, the decree to be submitted may provide for their <mask> or the disposition proposed in the schedule.


Similarly, this building was in a very deteriorated condition at the time Mr. Bodak assumed its management. The roof and walls leaked, the elevator and incinerator were inoperative, oil was not being delivered to the building, the superintendent had quit and no repairs were being made or other services provided to the tenants. One third of the apartments were vacant, the building had been the subject of rent strikes and was on the verge of <mask>. Again, it is undisputed that, after considerable effort, Mr. Bodak returned the build*219ing to a truly habitable condition and made all real estate tax payments current.


To prove <mask>, the conduct of a spouse must be shown to be unjustified and without consent of the other spouse. Defendant claims that he could not have “abandoned” plaintiff after agreeing to a separation agreement. The facts indicate otherwise. The agreement to separate was for a six-month period, after which the defendant fled from the court’s jurisdiction to a foreign country, leaving the wife and children behind and unsupported. It is graphically clear that plaintiff wife did not want nor consent to her husband’s exodus from Israel while the divorce action was pending. Nor can defendant claim that disobedience of a court order can be justified. The husband’s conduct is indeed a classic example of abandonment.


The trial court did not commit clear error in failing to conduct an <mask> inquiry after appointed counsel timely filed a facially sufficient statement in lieu of an amended motion. And because Perkins's pro se amended motion was not the reply authorized by Rule 24.035(e), the trial court was not obligated to consider the pleading as a reply in the manner directed by Latham .


The petitioner, however, seeks to overturn or nullify the effect of a Supreme Court judgment of separation in her late husband’s favor against her on the ground of <mask> on the basis of the conduct of the parties, i.e. a reconciliation. It is clear that such a separation judgment can only be revoked *106as provided in section 203 of the Domestic Relations Law or overturned on appeal. The former was attempted without success but the latter was never pursued by petitioner.


The papers in support of the motion allege that plaintiff wife had obtained in this court, in December, 1957, a judgment of separation upon the grounds of <mask> and nonsupport; that said judgment provided for payment of $15 per week for plaintiff’s support and maintenance; that shortly thereafter, in January, 1958, the husband commenced an action for divorce in the courts of Alabama in which he alleged a bona fide residence in Alabama for a period of more than one year next immediately preceding the commencement of the action there; that such allegation is false and fraudulent and that in fact the husband was at all times and continues to be a resident of the State of New York; that the husband gave a Brooklyn residence at the time of the trial of the separation action; that he is and at all times has been a part owner of a substantial business in the city of New York; and that if he was in Alabama at any time it was solely for the purpose of executing papers in connection with his divorce action there. Plaintiff wife further alleges that she received by mail a copy of the summons and complaint and order of publication in the husband’s divorce action instituted in Alabama but that she has not been served personally in that action. The wife further contends that her husband has commenced the Alabama action for purposes of circumventing the laws of this State as well as his obligations and her rights as established under the judgment of separation. Plaintiff further states that she is presently unemployed and that her sole income comes from unemployment insurance payments, and from the $15 per week, allowed under the judgment of separation, which the husband has not paid promptly to date. The wife contends that she is unable to pay a counsel fee.


New York’s law (Domestic Relations Law art 5-A), the Uniform Child Custody Jurisdiction Act, is comparable to and largely parallels the PKPA. Specifically, section 75-d provides four possible predicates for jurisdiction: (a) home State; (b) significant contacts or substantial evidence concerning the child’s care in New York; (c) physical presence, plus <mask> or emergency; and (d) no other State has jurisdiction or has declined to exercise it because this State would be a more appropriate forum.


The law in this state is that the testimony of a single person, including the *488plaintiff , may be sufficient to support an award of emotional distress damages. "If credited by the jury, appellant's testimony about the extreme pressure she was under and her state of mind during the last few weeks of Richmond's representation-including feelings of <mask> and betrayal by her attorney, anxiety over her possible loss of her family home, and undue pressure to obtain financing on a timetable established for the benefit of her attorney and opposing counsel-as well as her loss of lifetime health benefits, may well be sufficient to support an award of damages for emotional distress from the alleged breaches of fiduciary duty." ( Stanley v. Richmond, supra, 35 Cal.App.4th at p. 1097, 41 Cal.Rptr.2d 768 ; see McLaughlin v. National Union Fire Ins. Co. (1994) 23 Cal.App.4th 1132, 1162-1163, 29 Cal.Rptr.2d 559 [emotional distress damages in insurance bad faith action may be established by the plaintiffs' testimony; it was improper for the jury to award emotional distress damages to those plaintiffs that neither testified nor produced other evidence of their damages]; Tan Jay Internat., Ltd. v. Canadian Indemnity Co. (1988) 198 Cal.App.3d 695, 708, 243 Cal.Rptr. 907.)


It is true the amended statute of 1882 enlarges the statute of 1871 by an addition of the words “or who shall leave them in danger of becoming a burden on the public, or who shall neglect to provide for them according to their means; ” yet the crime is <mask>, and the words “ leave them,” refers to the original leaving, and if it is intended to make “ neglect to provide for them according to their means,” an additional or new offense, there is no proof here to make the husband guilty; there is no proof that he had any means. ¥e prefer to place our decision on the ground of want of jurisdiction in the magistrate to entertain the proceedings. The original law had relation only to abandonment in the county of Kings, and the amendatory statute was intended to have the same scope and be subject to the same.


The Loft Law was enacted in 1980 in an attempt to solve an interconnected group of problems which had become increas*487ingly serious over the preceding 20 years. The <mask> by manufacturers in the 1960’s of such areas of the city as Soho and the garment district for locations outside the State had left city landlords with an abundance of large, empty, and seemingly undesirable factory buildings for which commercial tenants could not be found. Coincidentally, this period saw other areas of the city — Greenwich Village to name one — grow in desirability. As a result, artists who had worked in these neighborhoods found themselves unable to pay the escalating rents which were being obtained for residential units. Forced out of their traditional haunts, these artists turned to the large loft and factory spaces which had become available with the relocation of manufacturers and the demise of other commercial tenants. Landlords were pleased to have artists take over these raw spaces and often collaborated in renovating the premises to suit their new residential tenants. Gradually portions of these neighborhoods began to gentrify and eventually to become affluent, as loft after loft was turned to residential use.


Under the facts testified to herein, the court finds that the plaintiff has met her burden. Courts have recognized that there comes a time in such relationships where it would clearly be futile for one spouse to continue to ask the other to engage in sexual relations. Where, as here, the defendant, on his own, moves out of the marital bedroom and into a room on a separate floor and refuses a request after that, it is the court’s opinion that the plaintiff should be relieved of any requirement to continue to ask for sexual relations. This court’s position is further supported by precedent established in Smith v Smith (254 AD2d 788 [1998]), where the Appellate Division, First Department, held that when the wife specifically requested sexual relations, and the husband made disparaging remarks about the wife’s weight, told her that she was no longer attractive to him, and removed himself from the marital bedroom permanently, that sufficiently established the grounds of constructive <mask>.


I am therefore brought to the conclusion that Clark, subsequent, to his purchase in 1815 of the west half of the TontineCoffee House, entered into a contract with Stewart for the sale of a moiety thereof: that Stewart, by delivering up Clark’s bond for $16,000, actually satisfied him for the consideration agreed to be given therefor; that the subsequent <mask> of the Contract (if it in fact ever was abandoned) was an invalid act by reason of its having been done in fraud of Stewart’s creditors; and the release executed in 1819 was not designed and should not now be permitted to have the affect of discharging any interest of Stewart in the premises derived from that contract.


Notably, section 111 (subd 1, par [c]) of the Domestic Relations Law, on which this court relies, was previously declared constitutional by the Court of Appeals of New York State in Matter of Malpica-Orsini (36 NY2d 568) and that opinion has been recently affirmed by the Supreme Court of the United States. (Orsini v Blasi, 423 US 1042.) The New York Court of Appeals held not only that consent of an unwed father was unnecessary to adoption by the stepfather, but also that <mask> of the child by the father need not be established. Regular support and visitation by the losing father was emphasized in the dissent. (Matter of Malpica-Orsini, supra, p 590.) The majority expressly held (p 576): "To contend that at least some of the fathers of children born out of wedlock should be accorded the option or veto of consent is meaningless as far as ameliorating the problem. To grant this right to those who acknowledge paternity would require a most difficult search and constant inquiry. To extend it to those who have contributed to the support of the child would be an excursion into relative values difficult of proof.”


The proof is legally sufficient, however, to grant a divorce on the ground of constructive <mask>. Domestic Relations Law § 170 (2) provides that an action for divorce may be maintained upon the ground of the abandonment of the plaintiff by defendant for a period of one or more years. The essence of abandonment is a refusal on the part of one spouse to fulfill basic obligations arising from the marriage contract (Diemer v Diemer, 8 NY2d 206). To establish a constructive abandonment, plaintiff must prove that there was a failure and refusal on the part of defendant to engage in marital relations for at least a year prior to commencement of the action (De Angelis v De Angelis, 54 AD2d 1088). Plaintiff testified that the last time they had sexual relations was in 1982. Defendant denied that allegation but conceded that they had not had sexual relations in the year prior to commencement of the action. Plaintiff testified that she tried "every couple of months” for years to discuss defendant’s forbearance with him, but defendant refused to discuss it. Once plaintiff makes out a prima facie case of abandonment, judgment should be granted unless defendant pleads and proves justification (Maryan v Maryon, 60 AD2d 623). That did not occur in this case. We remit the matter to Supreme Court to grant judgment in favor of plaintiff and to consider the remaining issues. (Appeal from Judgment of Supreme Court, Onondaga County, Murphy, J.—Divorce.) Present—Bailo, J. P., Lawton, Wesley, Callahan and Davis, JJ.


Thus it appears that the legal effect of the policy in suit was to restrict the liability of the underwriters to an actual total loss, *387which can only be construed to refer to the well settled definition of an absolute total loss, by a destruction of the thing in specie, and to guard against any liability to arise from a partial loss, where the expense of repairs would exceed the value of the vessel when repaired, or when, as the expert witnesses in this case, in effect, say, “ the vessel was not worth repairing.” And probably the reason for this restriction is to be found in the fact that the vessel insured was rated as B. 2, which shows that she was estimated as an old and inferior vessel, likely, if damaged at all so that repairs became necessary, to be liable to <mask>, as for a total loss, under the American rule, that a constructive total loss may arise where the repairs will exceed one-half the value of the vessel when the loss occurred. The limitation of the risk of the underwriters being confined to an actual total loss, was evidently intended to exclude the idea of repairs.


This finds support in Sandowski’s own affidavit wherein he states: “Up to now, the defendant’s attorneys (who are the same attorneys that represent Charles E. Wetzler and Victor Fabry, individually, in the pending arbitration proceeding) have uniformly and consistently taken the position that the alleged agreement can raise issues only as between the three individuals who signed it and that the arbitration clause in it binds only them to arbitrate those issues. In this connection, it is to be noted that the original notice or demand for arbitration was made by Wetzler and Fabry, as individuals * * *. The *957motion to direct arbitration which led to the pending arbitration proceeding and the petition in support thereof were made by those individuals and were directed to Wladyslaw Sandowski, as an individual alone * * *. In that petition, Wetzler averred that pursuant to the agreement (the agreement upon which defendant bases its present motion) Wetzler and Fabry have attempted ‘ to perform all of the aforesaid duties and obligations on their part to be performed ’ Judge Cardozo put it this way in Newburger v. Lubell (257 N. Y. 383, 386-387): “ We see no force in the objection that a waiver or <mask> of the benefits of arbitration could be inferred from the mere commencement of an action in the absence of notice that a controversy existed. ‘ Waiver is an intentional abandonment or relinquishment of a known right ’ ”.


Giving the relator the benefit of all doubts relative to her home life during this trying period, the subsequent events point to a definite relinquishment of her parental rights. As the court stated in Matter of Maxwell (4 N Y 2d 429, 433): “ The mother did not, it is true, leave her child on a doorstep, but surely an <mask> may be established by proof of conduct less drastic than that. Just as plainly, a settled purpose to be rid of parental obligations and to forego all parental rights spells out abandonment.” There can be no question that the relator removed herself from the alleged domineering influence of her father when she married three months later and took up her abode in her own home. Even assuming the tentacles of the father’s oppressive domination reached over and extended to her own home, such influence and control surely must have terminated and dissolved completely when her father passed away in January, 1958. Yet, in spite of the freedom she obtained by her marriage and the disappearance of any alleged fear of her father upon his death, no action was taken by her with regard to the child. It is undisputed that neither she nor her husband ever went to the police, the church, the District Attorney, Legal Aid Society, Surrogate’s Court or any other agency to obtain help in locating her child. Regardless of what may have been the reason for the relator turning over her child to the respondents, her complete inactivity and indifference to locating her child until approximately three years later clearly evinces an utter disregard of the exercise of her parental duties.


Gilbert Rabin, J. Respondent, by the instant motion, moves to vacate the judgment and warrant issued by this court on November 8, 1985, and seeks dismissal of the underlying petition for sum*80mary judgment by reason of petitioner’s failure to effect proper service of the petition upon the respondent. Although neither respondent nor petitioner has attached correct copies of the aforementioned judgment and warrant, the same is contained in the original court file under docket No. SP 5186/-85. Petitioner opposes said motion on the grounds that process was properly served and that respondent’s actions in seeking this relief some eight months after respondent’s eviction creates a laches defense and that the respondent’s actions thereafter evidence an <mask> of the premises.


I am inclined to the reasoning in the latter case, that the burden of proving <mask> by a spouse is upon those who assert it and thereby hope to establish the right and privilege to take the intestate’s property free from any claim of the spouse. I cannot conceive that the Legislature intended to put the burden of proof of a negative on a spouse claiming the right to elect, while placing the burden of proof of abandonment by a spouse on those who assert it to bar succession in a case of intestacy.


I am aware that some cases define "abandonment” in terms of "separation” (see, e.g., Belandres v Belandres, 58 AD2d 63, 64 [1st Dept 1977] [" 'In order to establish <mask> it must be shown that the separation is against the will and without the consent of the complaining spouse’ ”]). However, the Merricks’ unusual circumstances initially involved a separation of living quarters without a concomitant severance of the marital relationship or connection. This is not the type of separation to which these cases refer.


The <mask> disqualification of EPTL 5-1.2 (a) (5) applies to several distinct issues relating to a decedent’s estate: the right to serve as administrator (SCPA 1001), the right to an intestate share (EPTL 4-1.1), and the right to elect against a will in which the surviving spouse is left less than one third of the decedent’s estate (EPTL 5-1.1-A). Like so much of the law, the purpose of the disqualification statute in each of these areas is based on assumptions which have, over time, evolved into policy. These assumptions (and the resulting policies) are, in turn, grounded in the conditions and mores of a particular society, at a particular time.


Had both parties consented to such a disposition of the case at the time, their consent probably would have been an <mask> or waiver of the exceptions. (Byrnes v. The City of Cohoes, 67 N. Y., 204.) But there is no evidence of such consent on the part of the defendant; on the contrary, the case shows that his counsel excepted to the order by which the case was disposed of.


Further observation of rule 301 of the Buies of Civil Practice in the light of the decision in Mink v. Keim (supra) indicates clearly that this decision is not apposite here. Mink v. Keim *794{supra) was decided in 1943 prior to the adoption of the present rule 301 of the Rules of Civil Practice. The dissenting opinion of Judge Desmond, in which Judge Loughban concurred, distinguishes between voluntary nonsuits, inadvertent failures to answer the calendar and intentional <mask>, such as was occasioned in this case. Judge Lottghban, as Chairman of the Judicial Council, which recommended the adoption of the amended rule 301, was undoubtedly aware of the problem to be dealt with, for it was he who joined in Judge Desmond’s strong dissent from the majority holding in Mink v. Keim (supra, p. 307) which contained the following observation: “ When their causes of action were consolidated with others by an order which still stands, plaintiffs could not deprive that consolidation order of all effect by standing silent at the trial or by remaining* away from it and permitting a dismissal on the merits, and then commence, without anyone’s leave, a new action for the same relief.”


At the time this matter was marked off the calendar, the parties’ attorneys entered into a stipulation to restore the case to the calendar on consent. Thereafter, however, there ensued a 17-month period, with no activity whatsoever regarding the case, before the plaintiffs’ attorney contacted the defendants’ attorney to request that he sign a stipulation to restore. The plaintiffs have offered no adequate excuse for this delay. Although the agreement to restore on consent is some indication that the plaintiffs did not intend to abandon the action, the agreement alone is an insufficient ground upon which to predicate restoration, especially since there was no activity in the case during the period it was off the calendar (see, Bergan v Home for Incurables, 124 AD2d 517, 518; Escobar v Deepdale Gen. Hosp., 172 AD2d 486). Accordingly, the plaintiffs have failed to rebut the presumption of <mask> which attaches when a matter has been automatically dismissed pursuant to CPLR 3404 (see, Escobar v Deepdale Gen. Hosp., supra, at 486).


The subject of the litigation is an artificial body of water known as the Beaver Dam Reservoir in Sullivan County and Orange County. The primary issue is whether certain rights in the reservoir were appurtenant to a canal operated by the original owner of those rights, so as to be extinguished upon the <mask> of the canal; or whether they were, rather, in the nature of a profit or an easement in gross, thus surviving the abandonment of the canal and being susceptible of conveyance to a third party.


“The failure to order or make timely and proper incisions and excisions, failure to order or use a proper shunt, failure to order or take timely and proper diagnostic tests prior to surgery or prior to termination of surgery, failure to pay timely and proper attention to results of same, failure to order or make timely and proper diagnostic tests following surgery, failure to pay timely and proper attention to findings of same, failure to order or provide timely and proper post-operative monitoring and *802supervision, failure to order or provide timely and proper post-operative recovery, failure to order hospitalization to monitor patient’s post-operative progress, failure to monitor patient’s post-operative progress timely and properly, failure to diagnose or treat post-operative hemorrhage, improper and premature discharge of patient from hospital care, <mask> of patient needing emergency care, failure to order or perform timely and proper surgery upon patient, failure to review timely and properly surgeon’s plans for patient’s treatment, failure to order or provide timely and proper training to surgeons, physicians and staff treating patient, failure to order or provide timely and proper supervision for hospital staff surgeons, physicians, nurses, nurses’ aides and other support staff monitoring patient’s progress and treating patient” (notice of intention 1Í 3). It is alleged that, as a result of the improper treatment and premature discharge, Ms. Danney suffered a fatal postoperative hemorrhage at her home in the early morning hours of July 4, 2002 (id. If 4). The notice expresses the intention to commence an action seeking damages for pain and suffering and wrongful death arising out of the alleged facts (id. 1i 5).


The burden of establishing <mask> by the respondent falls upon the petitioners. The court determines that the petitioners have not sustained their burden and that the abandonment has not occurred on the part of the respondent. The courts have held that a finding of abandonment against a parent may be made only after the parent has been given the benefit of every controverted fact.


When the systems board became cognizant of their error, they correctly informed the parties that they would reconvene to make a determination. Plaintiff asserts that he ordered the union on his behalf to desist and withdraw its request for the board to reconvene. The union responded by informing Messina that if his grievance was withdrawn he would be time barred from a further filing on this same issue. Withdrawal would then act as an <mask> of his claim before the board, which has sole jurisdiction over these matters. Nevertheless, Messina persisted in his demand to withdraw and, failing that, in his refusal to appear or have his counsel argue his case before the board.


(Ibid.) As we explained: “An appellant must direct us to the parts of the record that show the claimed error. ‘An appellate court is not required to search the record to determine whether or not the record supports appellant[’s] claim of error. It is the duty of counsel to refer the reviewing court to the portions of the record which support appellant[’s] position.’ [Citation.] Under the California Rules of Court, each brief must ‘[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.’ [Citation.] ‘If no citation “is furnished on a particular point, the court may treat it as [forfeited].” ’ [Citation.]” (Id. at p. 626, fn. 8.) Here, appellant does something different, but equally problematic. Under the heading “The Project Description omits crucial facts,” appellant provides the applicable legal standard for assessing the sufficiency of a project description, but then, in arguing that standard is not met, shifts the argument to assert the EIR provides “an ‘inadequate description of the environmental setting for the project . . . .’ ” These are separate and distinct issues. (See San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, 654-659.) In order to properly raise the latter issue, appellant was required to do so under a separate heading. (Cal. Rules of Court, rule 8.204(a)(1)(B); San Joaquin River Exchange Contractors Water Authority v. State Water Resources Control Bd. (2010) 183 Cal.App.4th 1110, 1135 [argument forfeited for lack of separate heading].) Then, still under the heading indicating the project description is at issue, appellant challenges the EIR’s impact analysis and conclusion that the Blair Road alternative’s <mask> of most of the Upper Main Ditch “would not result in significant damage” to the environment through flooding. 6 Finally, the argument returns to discuss the importance of an accurate, stable, and finite project description. Because


This is not a custody proceeding in which parental ties would be preserved. It is an adoption proceeding which involves severance of all parental ties with its mother, the grandparents and other relatives. Such factors are to be considered. (Matter of Ekstrom, 24 A D 2d 276.) The grandmother, as mother of the natural mother, would be the natural guardian of the child if anything happened to the mother. (See Matter of Erhardt, 27 A D 2d 836; First Trust Co. v. Goodrich, 3 N Y 2d 410.) The court must give careful consideration to severance of all ties of a child to its natural mother unless there is <mask> or the *858parent is manifestly unfit. The burden to show such is on the nonparents. (Matter of Willing, 43 N. Y. S. 2d 834; Matter of Anonymous, 32 Misc 2d 683.)


In the instant case Marlborough respondents used the existence of the 1969 agreements and its contention that those agreements were enforceable after decedent’s death as a lever to extract from the fiduciaries the new agreements which were different and more beneficial to these respondents. They may not now be heard in their contention that the 1969 *859agreements should be reinstated. Apart from <mask>, the resulting massive change in position detrimental to the estate estops the Marlborough respondents from resurrecting the abandoned and superseded 1969 inter vivos contracts.


The vessel Avas then simply derelict; that is, abandoned through an overwhelming necessity, having been sunk by force of the elements to the bottom of Long Island Sound, in the place where the disaster happened to her, a buoy having been attached to her bow before she sank, so that the spot where she lay might easily be found. This was not such an <mask> as would divest the owner of his property in the vessel, for that results only where an abandonment is made voluntarily by an owner with his free consent (1 Abb. U. S. Pract. 575; 2 Phillips Ins. §§ 1490, 1525, 1526, 1527).


The appellant contends that the foregoing testimony presented a question of fact for the jury to pass upon and relies on the opinion in Parnell v. Holland Furnace Co. (234 App. Div. 567; affd., 260 N. Y. 604). In that case an automobile owned by defendant, which had been stripped of most of its parts, had been abandoned in the rear of its place of business where it remained for months; at the time of its <mask>, gasoline had been left in the tank; children in playing about had removed the cap from the gasoline tank, and later the infant plaintiff struck two stones together which caused a spark to enter the exposed gasoline and an explosion occurred, causing a fire from which the plaintiff was severely burned.


By the Chancellor. This is an action upon a policy on the freight of the ship Pallas, on a voyage from New-Orleans to Havre, and the right of the plaintiff to recover for a total loss depends upon the question whether there was a valid <mask> to the underwriters upon the policy on the *50ship. I shall therefore proceed, in the first place, to examine that question.


The Trails Act reflects “the culmination of congressional efforts to preserve shrinking rail trackage by converting unused rights-of-way to recreational trails.” Preseault v. I.C.C., 494 U.S. 1, 5 (1990) (“Preseault I”). This temporary, or interim, use of established but unused railroad rights of way functions “to preserve [such] rights-of-way for future reactivation of rail service,” should the need arise. 16 U.S.C. § 1247; see also Caquelin v. United States, 959 F.3d 1360, 1363 (Fed. Cir. 2020) (“The [Trails Act] provides for blocking of ‘<mask>,’ however, despite the absence of any rail use, present or in prospect, if a proper entity agrees with the railroad to take over the rail right-of-way for trail use.”) (citation omitted). According to the Trails Act, “if such interim use is subject to restoration or reconstruction for railroad purposes, such interim use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes.” 16 U.S.C. § 1247. Commonly known as “railbanking,” this process “allows a railroad to negotiate with a state, municipality, or private group (the ‘trail operator’) to assume financial and managerial responsibility for operating the railroad right-of-way as a recreational trail.” Caldwell v. United States, 391 F.3d 1226, 1229 (Fed. Cir. 2004) (citing Preseault I, 494 U.S. at 6–7).


The Supreme Court reversed. It held this to be a “ major ” rather than a “ minor ” dispute (362 U. S. 330, 341). The majority said, per Black, J. (pp. 338-339): “ The railroad has argued throughout the proceedings that the union’s strike here may be enjoined, regardless of Norris-LaGuardia, because its effort to bargain about the consolidation and <mask> of railroad stations is unlawful. * * * Here, far from violating the Railway Labor Act, the union’s effort to negotiate its controversy with the railroad was in obedience to the Act’s command that employees as well as railroads exert every reasonable effort to settle all disputes ‘ concerning rates of pay, rules, and working conditions.’ 45 U. S. C. § 2, First.”


The cross motion by plaintiff to discontinue her causes of action is denied. Defendant’s motion for summary judgment of divorce on plaintiff’s first cause of action (grounds of <mask> [Domestic Relations Law, § 170, subd (2)]) is granted and such cause is severed accordingly. In view of this determination, plaintiff’s second and third causes of action, together with defendant’s counterclaim are dismissed as academic. (Cf. Hickox v Hickox, 72 AD2d 688, supra.)


The court is satisfied that section 1425 of the Civil Practice Act which permits a tenant to interpose in his answer a claim of equitable title, specifically limits the equities to be determined by such a defense to the right of possession only on the part of the landlord, and that this court, not being a court of general jurisdiction, has no authority or power to direct the relief requested in the answer, inasmuch as such relief should be sought in a court of equity and not in a proceeding of this nature. (See Blumenauer v. Richelson, 219 App. Div. 462.) This same principle of law is reaffirmed in the Matter of Gladstone v. Drew (257 App. Div. 696, 697-698) where the court said: “ In this proceeding only petitioners ’ present right of possession may be determined. Whether upon <mask> the title reverts to the appellant Drew or to the heirs of Bassett and Peake, grantors in the deed to the school district, is not here presented. Courts have advised that when the right of possession involves title, reversion or equities, the quarrel between the parties may be dealt with better by a court of general jurisdiction. (Hoffman v. Hoffman, 212 App. Div. 531, 534; Blumenauer v. Richelson, 219 App. Div. 462.)”


Tlie question on the evidence was whether the defendant took' the fixtures during tlie possession by the plaintiff. If lie did, then he was liable in damages. The right of the plaintiff to remove during possession cannot well be doubted, and the violation of that right must subject the wrongdoer to an action. If the fixtures had been removed by the defendant after the plaintiff’s <mask> of them by yielding.. possession, sucli removal could not, on the authorities, be regarded as a tortious taking, though the detention mi¿hi be held to be unlawful. In the latter ease, a demand would be necessary, and perhaps a serious *327question might arise as to the right of the plaintiff to maintain an action of trover to recover their value. The Justice seems to have regarded a demand necessary In any event, for upon its absence from the plaintiff’s evidence he found against her. The finding is the move objectionable for the reason that the defendant made no motion for a dismissal of complaint on the ground referred to or called upon the plaintiff to make the proof omitted. I think the judgment should be reversed.


In sum, we conclude that under section 15610.07, subdivision (a)(1), "treatment" that is neither physical abuse, neglect, <mask>, isolation nor abduction, can constitute elder abuse if the treatment results in "physical harm or pain or mental suffering" even if the alleged abuser has no responsibility to care for the elder and no control of the elder's property. Accordingly, the trial court erred in dismissing Darrin's petition on the basis of Miller's claim that Darrin lacked standing: the court should have given Darrin the opportunity to present her evidence. We express no opinion on the merits of Darrin's claims.


The word ‘ ‘ <mask> ’ ’ has been defined by the courts in a multitude of cases, and the definition of abandonment as it relates to an adoption proceeding where it is alleged that a natural parent abandoned an infant, and because of such an abandonment the consent of such parent shall not be required to effect adoption, is most ably defined by former Judge Cabdozo of the Court of Appeals. (Matter of Bistany, 239 N. Y. 19.)


The putative father’s consent is not necessary, but he must be given an opportunity to be heard in the adoption proceeding in order for the court to make a determination as to what is in the best interests of the infant. One of the issues to be heard, that may have a bearing as to the best interests of the infant, is the alleged <mask> of the putative father.


Respondent contends that the court must follow the procedures of a parental rights termination, a two-step process beginning with a fact-finding hearing, followed by a “dispositional hearing” to determine custody. This argument was used in Matter of Anonymous (101 Misc 2d 169, 170), where the petitioner contended that the “standard in Matter of Bennett v Jeffreys * * * has changed the entire field of adoption and custody.” According to that standard, the court must first find (p 171) “surrender, <mask>, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody or extraordinary circumstances” before it could inquire into the child’s best interests. The court rejected that argument as “not supported by the law in this area. The standard in Matter of Bennett v Jeffreys (supra) is applicable in a custody proceeding, but not an adoption matter” (101 Misc 2d 170, 171; emphasis supplied). The respondent relies upon the case of Matter of Sanjivini K. (47 NY2d 374) in support of her argument that the rights of a natural parent are superior to those of prospective adoptive parents and that (p 382) “it is in the best interest of a child to be raised by his parents, unless the parents are unfit”. However, that case unlike the present one, involved a natural mother who had never consented to an adoption and who had never surrendered her child for adoption.


It is true that the findings of fact are confusing. This court is of the opinion that the reference to the plaintiffs ’ <mask> of an interest in the real property after September 1,1970 was intended to refer only to their possessory rights in the property. For it was on this date that the premises were leased by the plaintiffs to one, Frank Daniels. Abandonment of the prop-erty could not, as the defendant insurer urges, have been the basis of the court’s legal conclusion that there was no binding -agreement between the parties. The basis of that legal conclusion had already been made in the earlier finding of fact (No. 5) that the written instrument was vague and indefinite and was not an agreement for the sale of real property, but rather was an agreement to make an agreement. The “ abandonment ” more properly characterized as a voluntary “ removal ” of the plaintiffs from the premises, coincident with their lease of the premises to a third party was material to the court’s determination only in reference to the proper equitable relief to be made by virtue of the $35 monthly payments which plaintiffs had paid to the seller. The conclusion of the court was that such payments should not be deemed payments of interest on the unpaid balance of the purchase price, but rather payments of rent by the plaintiffs on premises from which they had departed and rented to another. .


That’s the factual basis for plaintiff’s claim that defendant abandoned him. He is gracious enough not to charge her with abandoning him in 1955 (1959) when he went off to prison, but claims the <mask> occurred in 1969 when he was released and refused his request for her to return when he found she was not at home waiting for him (Tie a Yellow Ribbon Around the Old Oak Tree).


Thus, from the whole testimony, I think it is entirely clear that the settlement of the Wood claim was entirely independent of this sewerage connection ; that this .claim was finally settled as the result of the negotiations between McClelland and Vedder, the president of the Chauncey Realty Company ; that while there had *539been preliminary talks between Lamb and McComb in relation to the grant of sewerage connection for' the houses to be erected by the Chauncey Realty Company upon its property, the exact form of that concession was not finally determined, but was to be represented by written instruments thereafter to be executed; that this concession was subsequently asked for solely upon the ground that the development of the Chauncey Company’s property, as proposed by that company, would benefit McComb’s property, and that to accomplish the erection of these dwelling houses and club house and the establishment there of a residential location, McComb was willing to give a limited right to use the sewer, but that no actual easement was ever granted either verbally or in writing ; that the subsequent <mask> by the Chauncey Company of its proposed improvements, the foreclosure of the mortgage upon its property, and the failure of that company to carry out its building scheme, upon the performance of which whatever promises there were were made, terminated the right of the Chauncey Company, whatever it was, and thus no easement ever became appurtenant to the property which would so attach to it as to pass by the referee’s deed given in pursuance of the foreclosure of a mortgage that had been on the property prior to the time when this agreement was made, and by which the whole scheme of development of the Chauncey property, upon which whatever promises McComb made were based, was destroyed.


In Barnier (43 AD2d 568, supra), the same court as in Mante reversed the trial court, which had dismissed a complaint alleging both cruel and inhuman conduct and <mask>. The court stated (p 568): "In Mante v. Mante (34 A D 2d 134), we upheld the sufficiency of a complaint in an action for divorce for cruel and inhuman treatment which alleged that *734from the beginning of the marriage the defendant was cold and indifferent to the plaintiff, denied her sexual attention, was rigid and harsh to her and neglected and humiliated her. The proof adduced at the trial in the present case reached the level necessary under Mante to support the action. Plaintiff testified to a period of sexual denial prior to his leaving the marital residence. There was proof that defendant isolated him from family life and refused to perform her wifely duties. She also threatened to 'break him’ and 'get rid’ of him. Plaintiff testified that as a result of defendant’s course of conduct he had sought and received medical care and treatment, could no longer properly perform in his work and had become, in essence, a nervous wreck.” and (p 569): "Nor was the proof insufficient to support a divorce on the theory of abandonment by reason of defendant’s refusal to engage in sexual intercourse (Diemer v. Diemer, 8 N Y 2d 206; Mante v. Mante, 34 A D 2d 134, 137, supra). There was proof that such refusal commenced and existed for some time before plaintiff’s departure from the marital residence.” Stated another way, mere refusal to engage in sexual intercourse is sufficient for abandonment (assuming it continues for the statutory period), but, refusal, standing alone, does not constitute sufficient grounds for a divorce under subdivision (1) of section 170 of the Domestic Relations Law.


That the defendants have the first, and, consequently, paramount title, to use the waters for propelling the machinery of their mill there *217can be no doubt. But can they go higher up and take the -water from the stream, and convey it to a different place, for the purpose of selling it to miners ? If so they can defeat the object for which they first intended it, and have ever subsequently applied it. I hold that it is not permissible for a party to abandon the use of water, which they have used as a motive power for turning a mill at a particular place, and then take the same water up and apply it at a different place for another purpose, when by so doing it will destroy a water privilege acquired by a second party, before the <mask> of the first use. The plaintiffs constructed their ditch Ho. 2, and used the water subject to the right of defendants. When the defendants were engaged in sawing, plaintiffs ceased to take water, and only appropriated it when the mill was idle. This seems to have been the understanding of both parties prior to the construction of the third ditch by defendants. But it is contended that a first locator may change the point of diversion without losing his present right. This, I grant, may often be done, but in so doing the rights of subsequent proprietors above him on the water course must not be impaired. In other words, he cannot divest himself of a right already acquired in order to assert title elsewhere to the prejudice of subsequent locators. Our supreme court has decided, and justly, that the owners of a ditch may extend it so as to convey water from where it was last used to other localities ; and I have no hesitation in saying that the defendants in the case at the bar, might at any time previous to plaintiffs’ constructing their ditch Ho. 2, have preserved the water used at then* mill (which was off the stream) and taken it where they chose.


Person in need of supervision (PINS) petitions had also been filed against Anthony for the same behavior. He was placed on probation and then placed with the Department of Social Services on April 22, 1999 on disposition of a violation petition. Ms. O. continued to experience problems with Anthony’s behavior and voluntarily signed a judicial surrender of her parental rights on March 13, 2001. The Department of Social Services had commenced a termination of parental rights proceeding against Anthony’s biological father, alleging <mask>. Anthony’s biological father also voluntarily signed a judicial surrender of his parental rights on March 13, 2001 and the termination of parental rights petition against him was dismissed. Anthony was subsequently adopted by Arthur R and Maria E, his longtime foster parents.


The second counterclaim is for a separation. It contains by reference all of the allegations of the first counterclaim and, altogether, presents several grounds for the separation, such as cruelty, <mask> and nonsupport, forcing defendant to execute a separation agreement by duress, etc. If defendant has more than one cause of action for separation, she should separately state and number each cause, and, moreover, she should omit unnecessary, irrelevant and immaterial allegations. Also, allegations by omnibus reference should not be made in the count unless required to support the cause of action pleaded. Finally, rule 280 of the Rules of Civil Practice requires allegations of fact, not conclusions, of which there are a number in this counterclaim.


Mental Hygiene Law former article 78, the committee statute, required a finding of complete incompetence. That statute provided no guidance regarding what constituted incompetence, no standard governing the type of proof required to establish incompetence, and no specification respecting the range of powers assumed by a "committee of the person”. However, a finding of incompetence resulted in a complete loss of civil rights and the accompanying stigma of total incapacity. Because of this stigma and loss of civil rights, the judiciary became increasingly reluctant to invoke article 78. This reluctance, together with the statutory preference for a conservator which appeared in both Mental Hygiene Law former articles 77 and 78, resulted in the virtual <mask> of the committee procedure (Koppell and Munnelly, The New Guardian Statute: Article 81 of the Mental Hygiene Law, 65 NY St BJ [No. 2] 16 [Feb. 1993] [hereinafter Koppell and Munnelly]).


Defendant’s first counterclaim/third affirmative defense is based on plaintiff’s alleged <mask> of defendant in July, 1978. It is undisputed that on April 4,1978, while the parties resided in New Jersey, they signed an agreement which, among other things, stated that they would live separate and apart from one another. The agreement apparently executed in New Jersey does not conform to the formalization requirements of subdivision (6) of section 170 of the Domestic Relations Law.


. The legislative history for EPTL 5-1.2 provides: “Since the cases generally hold that the substantive law of <mask> . . . is no different under these statutes than in matrimonial actions no study of this substantive law is deemed necessary.” (4th Rep of Temp St Commn on Estates, 1965 NY Legis Doc No. 19, Report No. 1.14B at 275-276.)


3. Legislative history is not helpful. We first find it mentioned, in slightly different form, in the Office of Court Administration’s (OCA) Proposed Uniform Rules for New York State Trial Courts (Jan. 1984). It required service of judgments in 30 days. OCA’s January 1984 commentary to the proposed rules (a separate volume) said only that section 208.33 was new, but "substantially the same” as proposed Supreme/County Court Civil Rules § 202.48. The January 1984 commentary for section 202.48 says it was based on Supreme Court rules in the 1st District, in Queens, and numerous local courts. The submission was required in 30 days, and "failure to submit the judgment timely is deemed an <mask> of the matter, unless good cause is shown.” Of course, upon further consideration, the proposed 30 days were changed to 60 days.


The O. P. A. has long since ceased to exist, and after 1952 no possible conflict with any rent control law could arise from the imposition of penalty rent either for vacating without the statutory notice or continuing in possession despite the notice. When a commercial or business tenant gives notice of intention to vacate, he removes himself from the entire field of rent control (White-Way Arcade v. Broadway Turtle King, 273 App. Div. 281, 285 decided in 1948, holding that such a case fell “ outside the purpose and intent of the statute ” and authorized his <mask> even in the absence of statutory provision therefor; subdivision [g] of section 8, amended expressly in *5101949 [ch. 534] to incorporate this principle as one of the statutory grounds for eviction; section 13 of the Commercial Bent Law and section 12 of the Business Rent Law [L. 1945, chs. 3, 314, as amd. by L. 1950, chs. 326, 327] decontrolling space then vacant or thereafter vacated).


In this case the tenant protections are predicated on the preexisting nexus between the owners and the tenants and do not involve, as did the Seawall case (supra) the obligation to rent-up vacancies. That is an important distinction, as Judge Hancock, Jr., indicated in the writing for the majority in Seawall (74 NY2d, at 112, n 11, supra): "As we have already discussed, government has considerable latitude in regulating landlord-tenant relationships to preclude <mask> in hardship, emergency and rent-control cases, and both this court and the Supreme Court [of the United States] have upheld such efforts.” (Emphasis added.)


Article 7-C is the counterpart of the Emergency Tenants Protection Act of 1974 (ETPA) (L 1974, ch 576, § 4), and embodies a clear legislative intent to protect “residential occupants” of “Interim Multiple Dwellings” (IMD) due to an “acute shortage of housing.” Its provisions parallel the ETPA provisions prohibiting the <mask> of “residential occupants” who are not in default in the payment of rent and provide for their “continued occupancy.” The implementation of the law is delegated to a loft board.


“However, the attorney’s fees award was improper. As a general rule, whatever the prior agreement between the parties, a landlord may not collect costs, penalties and other non-rent items as ‘added rent’ from a Section 8 benefits recipient unless specifically provided in the Section 8 lease (Matter of Binghamton Hous. Auth. v Douglas, 217 AD2d 897, 898; Port Chester Hous. Auth. v Turner, 189 Misc 2d 603, 604 [App Term, 9th & 10th Jud Dists]).” See also Douglas v Nole (20 Misc 3d 1119[A], 2008 NY Slip Op 51394[U] [Nassau Dist Ct 2008]), holding that legal fees cannot be the basis for <mask> in a summary proceeding involving a Section 8 tenant.


“[s]o long as all payments have been made timely pursuant to Paragraph 2a above, Purchaser shall have the right to lease the subject premises . . . The failure to make any of the payments called for . . . shall be deemed a default in the lease herein and buyer’s right to the tenancy herein shall be terminated if such default is not cured within 7 days . . . Seller shall have the right to evict Purchaser and Purchaser in such event shall be liable for Seller’s attorney fees.” While the contract does call the use of the property during the 20-year period of payments a “lease,” that alone is not *225enough to show an express agreement to continue a landlord-tenant relationship. Petitioner argues that the right to evict upon purchaser’s default (given to him under the terms of the contract) expressly gives him the right to commence a summary proceeding. However, petitioner may seek to evict respondent via an ejectment proceeding in the Supreme Court rather than a summary proceeding, and this would be in line with the general rule of merger and termination of the landlord-tenant relationship. In the case cited by petitioner (Lind v Lind, 203 AD2d 696, 696 [1994]), the contract terms stated that “all payments shall be regarded as rent and the relationship between the parties shall be that of landlord and tenant,” that in the event of default seller was entitled to commence a summary proceeding for the removal of the purchaser, and that “all payments previously made shall be considered rent and the Seller shall be entitled to retain such funds and the Purchaser shall not be entitled to any refund.” Those terms clearly set forth an intention to continue a landlord-tenant relationship and expressly allow seller, upon purchaser’s default, to commence a summary proceeding for the <mask> of the purchaser.


On the morning of December 18, 1979, the Marshal *274executed the warrant at tenant’s place of business by changing the locks and providing landlord with a certificate of repossession. The Marshal did not remove tenant’s property from the premises because landlord did not direct him to do so. Contrary to the contentions of tenant, this was a valid execution of the warrant. It was a legal possession, as opposed to a complete <mask>. Section 6-2 of the Marshals Handbook of Regulations provides that "the distinction between an eviction and a legal possession is that in an eviction, both the tenant and his property are removed from the premises, whereas in a legal possession, only the tenant is removed and the property remains on the premises, under the care and control of the landlord as bailee for the tenant.” The warrant was executed just prior to 9:30 a.m. on the morning of December 18, 1979. During its execution, tenant’s counsel informed the Marshal by phone that two of tenant’s employees were in court at that very moment to pick up an order to show cause containing a stay of eviction which had been left with the court the day before. The Marshal, nevertheless, went ahead with the eviction and was absolutely correct in doing so. He was not obligated to stop the eviction unless and until he was served with a copy of a valid order containing a valid stay. The Marshal was not served with the order to show cause containing a stay until 10:20 a.m. on December 18, 1979, when he returned to his office following his execution of the warrant an hour earlier.


The cases and the statutes make it abundantly clear that even after execution of the warrant of <mask>, the Civil Court retains jurisdiction, in appropriate circumstances, to grant relief from its own judgments or orders (Iltit Assoc, v Sterner, 63 AD2d 600, 601; Third City Corp. v Lee, 41 AD2d 611; Papp v Maffei, 64 Misc 2d 739; CPLR 5015; CCA, § 212). This court has recently and repeatedly held that “[tjhere is no doubt of the right and power of this Court to restore a wrongfully removed tenant to possession of a premises, even after the execution of a warrant, under proper circumstances” (Teachers Coll, v Dzubey, NYLJ, Dec. 20, 1979, p 10, cols 2, 3, lv to opp to App Div den by App Div, NYLJ, April 10, 1980, p 6, col 6; Solack Estates v Goodman, 102 Misc 2d 504; Nelson v Kaufman, NYLJ, Nov. 24, 1978, p 12, col 1; see, also, JAR Mgt. Corp. v Foster, 99 Misc 2d 315, and cases cited). This court is empowered to grant the judgment which the Civil Court should have granted (Traubner v Alben Motor Corp., 40 AD2d 775, 776; CPLR 5522; and see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR, C5522:l, pp 222, 223).


It is the respondent’s contention that this petition is jurisdictionally defective by virtue of the fact that he was not a resident of the subject premises pursuant to the court order when nail and mail services were made of both the notice to quit and later the <mask> petition. The court need not endeavor to undertake an exhaustive consideration of the import of a court order compelling a new residence and respondent to stay away from the premises. Unlike section 308 of the CPLR, *543“actual residence” is not a requirement of section 735 of the RPAPL if the petitioner does not have written notice of the respondent’s new residence or place of employment. The justification for disregarding the actual residence criteria is that unlike plenary actions, “summary proceedings” involve expedited hearings concerning occupancy and possession rights of real property, i.e., a “res” as defined in the common-law legal vernacular. It is assumed that the legislature has deemed that posting of a petition challenging possession of a “res” at the site of the res, together with mailing same, gives adequate if not the best manner of notice of same if the respondent has not advised the petitioner of a new address in writing. (See generally Siegel, supra § 575.)


It is alleged in the complaint that the plaintiff is the owner of the property known as the Hotel Armstrong and that the premises had not been subject to rent control under the Federal rent control laws because it had been operated as a hotel within the Housing Expediter’s interpretation of the term “hotel”. On December 21,1949, the New York City Department of Buildings granted to the owners of the subject property a certificate of occupancy stating that the premises constituted a hotel. Under section 2 (subd. 2, par. [b]) of the State Residential Rent Law, the accommodations in the subject premises continued to be exempt from rent control, save as to tenants whose occupancy was continuous since December 2, 1949, because the establishment was commonly regarded as a hotel in the community in which it was located and customarily provided hotel services. Section 2 (subd. 2, par. [b]) of the rent law, was amended (L. 1959, ch. 695) effective June 30, 1959, and, pursuant to subdivision 2-b of section 4 (as amd. by L. 1959, ch. 695 and likewise eff. June 30,1959) the commission promulgated effective November 1, 1959, subdivision 10 of section 21 of the State Rent and <mask> Regulations, which, as to premises which had at one time been rent-controlled but which had been decontrolled by reason of a previous order, finding, opinion, or determination of the commission that the premises constituted a hotel, and which was now being recontrolled because it is not now being operated as a hotel within the definition of that term as contained in the 1959 amendment, fixed the amount of rent as the rent charged on July 1,1959, or the date of first renting, whichever was later. Pursuant to the same amendments, the commission promulgated subdivision 11 of section 21 and subdivision (e) of section 36 of the State Rent and Eviction Regulations, which, as to premises which had never before been controlled because it had always been regarded as a hotel but which is not now being operated as a hotel within the definition of that term as contained in the 1959 amendment, fixed a maxi*91mum rent on the basis of comparable accommodations. A proceeding was instituted by the Administrator, which resulted in an order determining that plaintiff’s premises is no longer a hotel, and rents were reduced approximately by 50%. Plaintiff’s premises, it is alleged, had never before been subject to rent control.


Nor should tenant’s noncompliance be excused by the fact that the stipulation did not contain a provision that no default would be considered de minimis. Nothing in the law requires the presence of such language to uphold the validity of a stipulation. To conclude otherwise, as the majority does, would permit some tenants to evade the consequences of a binding stipulation and discourage landlords from ever entering into stipulations without the inclusion of such language. Since tenant failed to tender payment pursuant to the terms of the stipulation, and there is no basis in law to excuse her failure, the Civil Court properly denied tenant’s motion to stay the execution of the warrant of <mask> (see Chelsea 19 Assoc. v James, 67 AD3d 601 [2009]).


These tenants have been long-suffering and patient. They claim, and the evidence abundantly establishes, that the various acts of the defendants and their curtailment of the various services, the cumulative effect of which is to deprive the tenants of the beneficial use and enjoyment of the premises and which constitutes a partial <mask>, were designed to make the continued presence of the residential tenants enjoying the protection of the statutory rent laws so untenable as to force their eviction in order to make possible the introduction of new commercial tenants at vastly increased rents. This scheme and design on the part of the defendants is abundantly established by the testimony of the witnesses, and the evidence of the manner and method of the operation of this building by the present owner.


Following said order of the Honorable Diane Gasworth, respondent, with the assistance of counsel from Legal Aid, obtained a second order to show cause dated September 27, 1983, which sought permission to allow respondent to *835proceed as a poor person on the appeal from the September 20, 1983 order of Judge Gasworth, a stay of the petitioner landlord and marshal from executing the warrant of <mask> pending said appeal, or in the alternative, vacating the final judgment and warrant of eviction and dismissing this proceeding or permitting respondent tenant to have a new trial or in the alternative, requiring proper service of a new 72-hour notice of eviction.


In Bradley v. DeGoicouria, 14 Abb. N. C. 53, the fact was that the plumbing work of the apartment-house occupied by a number of families, had been for some time in a defective condition, sewer gas escaped into the apartment occupied by the defendant, and the landlord failed to comply within a reasonable time with the order of the board of health to remedy the defect, and it was held that this amounted to a -constructive <mask>, and justified the tenant in abandoning the premises.


Under the New York common law, it was held that “In every case of a sale of personal property there is an implied warranty of title, and this is analogous to a convenant for quiet enjoyment of land * * *. The effect of such a warranty is to guarantee the purchaser against <mask> or injury from other parties ” (McGriffin v. Baird, 62 N. Y. 329, 331 [1875]; McClure v. Central Trust Co., 165 N. Y. 108 [1900]; Burt v. Dewey, 40 N. Y. 283 [1869]).


The dwelling involved is a two-room apartment in the rear of a store on the ground floor of the premises at 318 Bedford .Avenue, Brooklyn, New York. On or about June 6, 1955, upon the complaint of the tenant, the local rent administrator commenced an administrative proceeding, pursuant to section 36 of the State Rent and <mask> Regulations, to fix a maximum rental for the apartment of the sum of $5.50 per week. At the time, the weekly rental received therefor was $13.50 and registrations were filed by the landlord to that effect on or about December 27, 1954, and January 5, 1955. She opposed the tenant’s application upon the ground that the apartment was not subject to control. The issue presented is whether the apartment in question was in fact converted from a non-housing to a housing use after February 1,1947, so as to qualify it for exemption within the purview of the State Residential Rent Law and of the State Rent and Eviction Regulations. The statute (§ 2, subd. 2, par. [g], cl. [1]; L. 1946, ch. 274, as amd. by L. 1950, ch. 250) in its present form specifically exempts *437from control, among others, “ housing accommodations created by a change from a non-housing to a housing use on or after February first, nineteen hundred forty-seven ’ ’. The regulations (§ 9, subd. 4), in their pertinent part, provide that: “ These regulations shall not apply to the following: * * * 4. Housing accommodations created by a change from a non-housing to a housing use on or after February 1, 1947.”


The Bembrandt Building is one of the Carnegie Hall properties which was acquired by the city and leased to the Carnegie Hall Corporation. It adjoins the building known as Carnegie Hall. It is strictly a commercial building, used exclusively for commercial purposes. Plaintiff, Schreiber, has admitted, in a brief heretofore filed by her attorney in prior litigation, that the building “ has never been used for any cultural purpose”. Plaintiff, Schreiber, occupies a millinery store in the Bembrandt Building. She and all the other occupants of the building have been ordered evicted by final orders unanimously affirmed by the Court of Appeals. (Carnegie Hall Corp. v. Schreiber, 15 A D 2d 916, affd. 12 N Y 2d 680.) Schreiber and her coplaintiff are joint owners of a piece of real property in this city and, by reason thereof, qualify to bring the present taxpayers’ action. It is clear, however, from the papers before the court that the real purpose of the action is not to protect the interests of the city, but rather to further the personal interests of Schreiber by preventing her <mask> from the millinery store operated by her.


The defendant’s contention is that the subtenant removed from the premises because of an alleged failure of the plaintiff to keep the premises in any kind of condition or state of repair, and the defendant further contends that Mutual Designers, Inc., the subtenant, vacated the premises because of a constructive <mask> under the terms of the paramount lease between the plaintiff and the defendant.


Accordingly, there is no doubt but that the Rochester City Court has the power to accommodate any equitable defense, including retaliatory <mask>. This power, together with the fact that the tenant has affirmatively raised that defense in its answer which is part of the record before the court, renders spurious the argument of the landlord that this court’s limited jurisdiction as an appellate court does not permit it to “ conjure up any inherent equity defense based upon allegations extraneous to the record.”


Associates argues, however, that People ex rel. McGoldrick v Sterling (283 App Div 88 [1st Dept 1953]) establishes that in a non<mask> plan, a purchaser of the shares allocated to an apartment does not become the "landlord” of a nonpurchasing rent-controlled tenant. Associates reads McGoldrick far too broadly. The Appellate Division held that a purchasing shareholder by merely purchasing the shares does not become an "owner” within the meaning of the then Emergency Housing Rent Control Law (L 1946, ch 274) so as to obtain the benefit of an "owner-occupancy” eviction of the nonpurchasing occupant. The language of McGoldrick (p 93), that the owning corporation "is the landlord, not the stranger to whom its shares are sold,” must be taken in the context of the court’s effort to read the statute to avoid the result of unintended evictions. "[A] statute may not be read so literally that it yields in application a nonsensical result.” (283 App Div, at p 93.)


*307This court believes that pursuant to the consent decree in Escalera v New York City Hous. Auth. (supra) the Housing Authority is obliged to conduct an administrative hearing before it may terminate a tenancy for nondesirability and commence summary proceedings seeking the tenant’s <mask>. This conclusion, however, does not compel the granting of respondent’s motion. This proceeding has been brought by the Kings County District Attorney’s Office, not the New York City Housing Authority. While clearly authorized by RPAPL 721 (8) to bring this proceeding under RPAPL 715, the District Attorney’s Office was not a party to the consent decree in Escalera (supra), and there is no basis presented on which it could be held to be bound by same. (Bronx County Dist. Attorney v Mulrain, NYLJ, Apr. 13, 1992, at 30, col 6 [Civ Ct, Bronx County], supra; Kings County Dist. Attorney’s Off. v Underwood, 143 Misc 2d 965 [Civ Ct, Kings County 1989], supra.) Far from being an alter ego of the landlord, when the District Attorney is forced to bring a proceeding under RPAPL 715, the landlord must be made an adverse party to such proceeding and the landlord may be liable under RPAPL 715 (4) for substantial civil penalties and the payment of costs and attorneys’ fees. Since this proceeding has been brought by the District Attorney, not the Housing Authority, respondent’s motion on Escalera grounds was also denied.2


There is some conflicting authority on the necessity of obtaining a certificate of <mask> in the lower court and in some cases *356from the Appellate Term. For example, in Bromer v Rosensweig (166 Misc 2d 201 [1995]) the Appellate Term reversed the sua sponte dismissal of a licensee holdover petition, prior to a trial or even the submission of an answer by respondent. While the procedural posture of Bromer is very different from the case at bar, the sua sponte dismissal was based on the landlord’s failure to have obtained a certificate of eviction from DHCR prior to the commencement of the proceeding.


Should a final order be granted as of this time, the landlord could not achieve the purpose for which it seeks the <mask> of the tenant, in that it would be illegal for it to create and construct a parking lot for motor vehicles, and the tenant would be ousted from possession. True, the tenant may have his remedy in an action for damages, as provided for under subdivision (ccc) of section 8 if the landlord shall fail to start demolition of the improvement within 90 days after the removal of the tenant, or after having commenced demolition, shall fail or neglect to prosecute the work with reasonable diligence. The landlord, unless for good cause shown, would be liable to the tenant for all damages sustained on account of such removal.


“Defendant, STP Associates, LLC (‘STP’), purchased the Syosset Trailer Park located at 80 West Jericho Turnpike, Syosset, New York, in 2007. Plaintiffs are the remaining tenants at the trailer park. Real Property Law § 233(e) requires each manufactured home park owner to offer each tenant the opportunity to enter into a lease with a term of not less than one year. On June 1, 2007, STP sent each tenant of the park a written lease in which it offered a one-year rental agreement. None of the plaintiffs executed the lease agreement. Therefore, as of September 1, 2007, they became month-to-month tenants of the park. In September 2007, STP terminated plaintiffs’ tenancies. “In November 2007, it commenced <mask> proceedings against each of the individual plaintiffs in the Nassau County District Court, First District, Landlord/Tenant Part. In response to those proceed*492ings, plaintiffs commenced a lawsuit in Nassau County Supreme Court, entitled Amatuzio v STP, index number 021154/07 (the prior action). The first cause of action sought to void the sale of the park from Hormi Holding to STP based on an alleged violation of RPL § 233(b)(6). The second cause of action sought a court order directing STP to provide a six-month notice of change of use pursuant to RPL § 233 prior to commencing eviction proceedings. The third cause of action sought an order directing STP to modify the proposed written lease to include terms and conditions favorable to and desired by plaintiffs. The fourth cause of action alleged that the proposed rent increase by STP violated RPL § 233(g)(3) and sought an order directing compliance with that requirement. “Simultaneously with the filing of the prior action, plaintiffs sought and obtained a temporary restraining order from this court preventing STP from continuing the holdover proceedings and the District Court from considering the proceedings or issuing a judgment of eviction. In denying plaintiffs’ request for a preliminary injunction, this court determined that STP offered leases to plaintiffs in accordance with the statute. None were executed, thereby creating a month-to-month tenancy. (Decision of the Hon. Thomas R Phelan, dated 3/20/08, Amatuzio, et al. (2008 NY Slip. Op. 30867(H), Sup. Ct. Nassau County) (p. 4) (the prior decision). On April 29, 2008, plaintiffs filed for, and were granted, a further stay of the summary proceedings by the Appellate Division, Second Department. “One of the major contentions of plaintiffs in the prior action was that they were entitled to a six-month change-of-use notice before the commencement of a holdover proceeding against residents of a manufactured home park. In the context of the prior action, on May 30, 2008, the parties agreed in a written stipulation to the following: 1) Defendant STP retroactively withdrew all previous Notices to Terminate served on plaintiffs as if the same had never been served and retroactively restored the tenancies. The pending Holdover Summary Proceedings were withdrawn. 2) In accordance with Real Property Law § 233(b)(6), STP agreed to serve six (6) months Change of Use notices on each plaintiff *493herein prior to commencing a Summary Holdover Proceeding based on a month-to-month termination. 3) The second cause of action in plaintiff’s Amended Complaint was withdrawn. 4) Plaintiffs withdrew their appeal to the Appellate Division Second Department. “In June 2008, plaintiff served a Six Month Change of Use Notice, pursuant to Real Property Law § 233(b)(6) advising defendants that the owner proposed a change in the use of the park and that their month-to-month tenancies were terminated as of December 31, 2008. Pending the expiration of the notices of termination, defendant filed Non-Payment Summary Proceedings, which were concluded by stipulation. Plaintiffs settled the non-payment proceedings by paying approximately 19 months rent of the 23 claimed due. “On August 6, 2008, the prior action was discontinued with prejudice by stipulation. Three homeowners residing at the park (Giner Bonner, Marcy Rappaport and Lisa Caramico) were not provided with the Notice of Termination when the other plaintiffs were served. Defendant was prohibited by federal bankruptcy law from giving notice to those three homeowners (United States Bankruptcy Code, 11 U.S.C. § 362). The bankruptcy stay relative to these three residents was lifted by the United States Bankruptcy Court, Eastern District of New York, on March 9, 2010 (Orders of the Hon. Robert E. Gross-man, dated March 9, 2010). These homeowners were served Notices of Change In Use on March 17, 2010, with a termination date of September 30, 2010. The court notes that on January 26, 2010, defendant also served Notices of Termination on each plaintiff advising that each of their tenancies would terminate on March 31, 2010. “In the action now before the court, plaintiffs again seek a preliminary injunction pursuant to CPLR 6311 enjoining STP from commencing any eviction proceedings against plaintiffs in reliance on its service on plaintiffs of the Notice to Quit dated September 15, 2009, that stated ‘Six Month Notice of Proposed Change in Use of the Land Comprising Syosset Trailer’s Park.’ Plaintiffs also seek an order directing summary judgment pursuant to CPLR *4943212 on the first cause of action, declaring and setting forth the rights of the parties, specifying that plaintiffs are in good standing and were entitled to a written lease for a te[r]m of at least twelve months on or before October 1, 2009, containing terms and conditions, including provisions for rent and other charges, consistent with all rules and regulations promulgated by the manufactured home park owner/operator prior to the date of the offer, with rent charges identical to the rents currently paid by plaintiff; on the second and third causes of action, declaring and setting forth the rights of the parties, specifying that the Notices to Quit are null and void and of no effect; on the fourth cause of action, permanently enjoining STP from serving any further notices pursuant to RPL § 233, without leave of the court, on any of plaintiffs or until such time as the court may determine that STP is in compliance with the requirements of RPL § 233 (b)(6)(i); and declaring that pursuant to RPL § 233(b)(6), STP may only move forward to evictions based on an actual change in use, not a proposed change in use.” Justice Phelan dismissed the Drasser complaint, holding that STP’s September 2009 change of use notices complied with Real Property Law § 233 as a predicate to commence holdover proceedings, that plaintiffs were not entitled to further lease offerings, that the stipulation discontinuing the first action was valid and enforceable, and that plaintiffs were not entitled to injunctive relief.


On March 10, 2006, the District Attorney sought and obtained from me an order unsealing the case as to both defendants in order to pursue an <mask> proceeding pursuant to Real Property Actions and Proceedings Law § 711 (5) and § 715 in the Civil Court of New York City, New York County. On March 22, 2006, the District Attorney sent a letter to the managing agent of the target premises requesting that the landlord begin eviction proceedings. The unsealed records were enclosed in the letter. They included the property vouchers, the search warrant and return and laboratory reports. The demanded proceeding was first scheduled for August 21, 2006, has since been adjourned and is now stayed pending the outcome of this motion.


This action was then instituted to recover (1) $75 as damages, for breach by the defendant of the lease, being the amount of the rent for the month of September, which had previously been paid • by the plaintiff to the defendant; (2) $225 damages allegedly sustained by reason of defendant’s trespass upon plaintiff’s apartment and <mask> therefrom; and (3) $225 damages, representing treble damages for alleged forcible entry or detainer.


The amendment of the Code was made in conjunction with the purpose and intention of the Rent Stabilization Law which is to prevent any disruption in the housing market and to protect the public interest and welfare. The wholesale <mask> and displacement of family members, including spouses and children, would not only cause extreme hardship for many city dwellers but also would create turmoil in a city already facing an emergency housing shortage. In certain instances, such as in winter condition, it could result in life-threatening situations. This is the type of housing catastrophe which the *643Legislature sought to avoid in its enactment of the Rent Stabilization Law in 1969 and which the DHCR was empowered to prevent.


Final judgment of the court below (100 Misc 2d 120) unanimously reversed, with $30 costs, and the clerk of the court below is directed to enter a final judgment of possession in favor of landlord. Issuance of the warrant of <mask> stayed until further order of this court upon condition that tenants remove the dog within 30 days after service of a copy of the order hereon.


Barbara Jaffe, J. *736By notice of cross motion dated September 6, 2006, petitioner cross-moves pursuant to CPLR 3212 for an order granting it partial summary judgment on the instant holdover petition, awarding it a judgment of possession against respondent with respect to the vault space at the above-referenced premises, issuing a warrant of <mask>, striking respondent’s affirmative defenses, conforming the pleadings to the proof, and striking respondent’s jury demand. For the following reasons, the motion is granted in part.


In the meantime, a warrant was issued by this court on March 26, and delivered to a City Marshal for execution. On March 30, he notified the tenant that <mask> was scheduled for April 1. Under the circumstances, this court on March 31, 1964 signed an order to show cause temporarily staying the execution of the warrant until a hearing could be had with respect to the facts alleged.


The harm sought to be avoided by the provision of the Martin Act is the <mask> of tenants in possession prior to and during the conversion process. As noted by the Appellate Division, “the Martin Act reflects a public interest in protecting tenants properly in possession who do not desire or who are unable to purchase the units in which they reside, and therefore should be liberally construed” (MH Residential at 104). Respondent was lawfully a tenant in possession of the subject premises as of May 6, 2014, as well as the months before and after said date. Respondent therefore qualifies as a non-purchasing tenant under the act and is not subject to eviction based on the 30-day notice of termination.


Thus, Morrisania (supra) does not provide authority for this court to apply the two-year coresidency requirements of State and local regulations to the respondent herein because to do so would limit his rights as a remaining family member secured under Federal law. As Morrisania held in the same footnote as cited above (at 656, n 1), "the rights of section 8 occupants are independently rooted in Federal law.” Also, to impose such a two-year rule would be contrary to the Federal purpose of section 8: "In sum, section 8 guarantees continued protection to every legitimate member of the family unit in occupancy. It recognizes that no such family member should suffer <mask>, dislocation and homelessness upon the death of the tenant of *450record. It is thus consistent with the original ameliorative purpose of the United States Housing Act of 1937, the comprehensive legislation of which section 8 forms a part.” (Morrisania II Assocs. v Harvey, 139 Misc 2d, at 657 [citation omitted].)


This brings us, then, to the consideration of the only question left on this branch of the lease, to-wit, was the delay of the plumbers employed by the plaintiff in completing the repairs a sufficient ground to constitute an eviction? It appears that the plumber commenced work and did some excavating in the area about April 10th, and, for some unexplained reason, did not again proceed with the work in hand till April 18th, on which day defendant moved out of the premises. It is conceded that the defendant made no complaint to the plaintiff of the delay in completing the repairs, although she lived next door to the demised premises. The tardiness of mechanics in completing household repairs is, we think, a matter of general knowledge to all householders, and this case formed no exception to the general rule. Plaintiff employed a plumber to make the required repairs, and there is no claim that he was an incompetent person. In the absence of any complaint or notice from defendant, we think that plaintiff was justified in assuming that the repairs were proceeding in the usual way. That the delay of the plumber employed by plaintiff in not proceeding with the work commenced by him for a period of eight days was such an interference with defendant’s beneficial enjoyment of the premises as to constitute an <mask>, and authorize him to abandon the premises, especially in the absence of any notice to the plaintiff of such delay, we are not prepared to hold. Here was no wrongful act on the part of the landlord. She was doing just what the defendant, through the department of health, had required her to do, and she was pursuing the usual course. She was engaged in acts calculated to add to the habitability and enjoyment of the demised premises by the defendant. While, of course, the principalis generally liable for the wrong-doing of her agents, we think that it would be a harsh and unwise application of that rule to hold, in the present instance, that, by the neglect of the plumber in promptly completing the work he was employed to perform, he could evict defendant from the demised premises so as to release him from all liability under his lease.


On July 30, 1979, the Director of the Brooklyn District Rent office ordered that the petitioner’s apartment was not subject to the rent control law. This decontrol order was mailed and received by the petitioner’s attorney on August 3, 1979. Thirty-three days later, on September 5, the petitioner mailed his administrative protest, and it was postmarked the next day, September 6. Subdivision b of section 92 of the Rent and <mask> Regulations of the Office of Rent Administration provides: "A protest against an order of a District Rent and Rehabilitation Director must be filed with the Administrator within 33 days after the date such order is issued unless paragraph c of this section is applicable. A protest served by mail, postmarked not more than 33 days after the date of such order, shall be in compliance with this paragraph” (emphasis supplied).


Insofar as are here pertinent, the following statutes are under examination: The State Residential Rent Law (L. 1946, ch. 274, as amd., § 2, subd. 2, par. [h]): “housing accommodations which are rented after April first, nineteen hundred fifty-three, and have been continuously occupied by the owner thereof for a period of one year prior to the date of renting ’ ’ and, to the same effect, subdivision 11 of section 9 of the State Rent and <mask> Regulations, “Housing accommodations not subject to rent control * * * (h)ousing accommodations which are rented after April 1, 1953 and have been continuously occupied by the owner thereof for a period of one year prior to the date of renting ”.


Respondent’s fail-back argument is that even if petitioner is entitled to be restored to possession, she should not be restored as she would only be subsequently subject to <mask> by court proceeding, citing Wagman v Smith (161 AD2d 704 [2d Dept 1990]). Such a rationale should not allow the legitimation of, for lack of a better description, a "shoot first and *298ask questions later” approach. How does one know a person has no right of possession unless there first is a judicial determination of same. In the case of an apartment subject to rent stabilization or rent control the person in possession may have succession rights to the apartment. Allowing an ouster without a prior hearing leaves the respondent in the position of being the judge of the facts and the law as applied to the person in possession. To say that the respondent may later prevail at a hearing on the ouster is not a substitute for a prior hearing. One’s right to be heard first should not be dependent on the other party’s belief in the correctness of his actions. The individuals ousted, which often include young children, should not be made to suffer the indignity, humiliation and associated suffering involved in an ouster, on a gamble of respondent’s assessment of their right to possession. That the ousted person has a right to sue for damages if wrongfully ousted is not a sufficient balm to remedy such a wrong.


Edward H. Lehner, J. The plaintiff in this action was removed from his apartment on July 3,1980 pursuant to a warrant duly issued in a summary proceeding in this court. Items that were in his apartment immediately prior to his <mask> were not located when he redeemed his property from the New York City Department of Sanitation, which is charged with storing property removed during an eviction.


There is still a further answer to this defense. A constructive <mask>, as claimed here, requires an abandonment of the premises without unreasonable delay. (Herstein Co. v. Columbia Pictures Corp., 4 N Y 2d 117; Boreel v. Lawton, 90 N. Y. 293; City of New York v. Pike Realty Corp., 247 N. Y. 245, 247; Two Rector St. Corp. v. Rein, 226 App. Div. 73; Vessell v. Reisfield, 152 Misc. 464, 466; Spoken Realty Corp. v. Raddock, 150 N. Y. S. 2d 835; Bliss v. Clark, 104 Misc. 543, 545.) The landlords made it abundantly clear that they would consent to a rescission of the lease, and the tenants’ offer to surrender, and the acceptance by the landlords placed the tenants under the obligation to relinquish possession of the premises. It is well established that the tenants were required to act promptly or else they forfeited the right of rescission. Continuance in *1080possession for a five and one-half-month period cannot he held to he a prompt act of acceptance. It is arguable that in the event of a claimed breach, the tenants could have waived their right to vacate, but assuming that a forfeiture did occur, the action of the tenants in holding possession for the period mentioned, and the continued payment of rent can be considered as a reinstatement of the lease with full force and effect as if no forfeiture had ever taken place. The tenants must exercise their option to abandon within a reasonable time after discovering the untenantable condition of the premises. Moreover, it is difficult for the court to believe that in the month of July, 1962, a lack of adequate heat would be seriously proposed as the basis of a constructive eviction and consequent abrogation of the lease.


In Knickerbocker Oil Corp. v. Richfield Oil Corp. (259 N. Y. 657) the Court of Appeals ruled that, where the tenant is made a party to the foreclosure action, it is the sale, bringing about a change of title, that causes the <mask>, and that before the sale occurs, the commencement of the foreclosure action involves no breach of the rental contract.


On January 8, 1965, the defendant made application to the City rent agency for permission to evict all tenants residing in said buildings on the ground the defendant would immediately demolish the premises and construct a new building with at least 20% more housing accommodations than were contained in the existing buildings. (Administrative Code, § Y51-6.0, subd. b, par. [4]; Rent, <mask> and Rehabilitation Regulations, § 58, subd. a, par. [1].) The defendant’s application was granted. After exhausting all administrative and judicial remedies, the plaintiff was evicted on February 20, 1967. He was the last tenant to be evicted from the premises.