Arol Development Corp. v. Goodie Brand Packing Corp. , 55 A.D.2d 869 ( 1977 )

Appellate Term, entered October 19, 1976, and order of the Civil Court of the City of New York, County of Bronx, entered May 18, 1976, unanimously reversed, on the law and in the exercise of discretion, on the dissenting opinion of Tierney, J., at Appellate Term, and the matter remanded, without costs and without disbursements, to Civil Court, Bronx County, for rehearing of the motion for a new trial. The attack made on the denial of that motion specifies alleged impropriety by the hearing Judge as the basis for a new trial; he therefore should not have heard the motion. Indeed, he attempted abortively to refer it elsewhere for decision, but it was returned to him and he decided it. In the circumstances, it is to be heard anew by a Judge to be assigned by the Administrative Judge. The underlying judgment of eviction (83 Mise 2d 477) having been sustained at Appellate Term (84 Mise 2d 493) and here (52 AD2d 538), and further appeal dismissed (39 NY2d 1057), we see no further need for continuance of the present stay, and it is vacated. Concur—Markewich, J. P., Kupferman, Lupiano, Silverman and Nunez, JJ.