Church Mutual Insurance v. People

—Order unanimously reversed on the law with costs, motion granted and order vacated. Memorandum: County Court erred in denying the motion of Kingdom Evangelism Ministries, Inc., and Scott Kear, its president (respondents), to vacate an order staying execution of an order of Buffalo City Court and restraining respondents from selling, transferring, mortgaging or otherwise encumbering their property at 341 Delaware Avenue in the City of Buffalo. Petitioner’s application for a stay of the City Court order was improperly granted in the first instance. That application should have been made to Buffalo City Court (see, Spanro Indus, v Feit, 42 AD2d 616; Thorne v Thorne, 203 App Div 786, 787; see also, Matter of Modernismo Pubis, v Tenney, 104 AD2d 721; Safer v Cohl, 95 AD2d 933, 934). Injunctive relief was also improperly granted against respondents in the first instance. There is no pending action to support that relief (see, CPLR 6301; Uniformed Firefighters Assn. v City of New York, 79 NY2d 236, 239; Tribune Print. Co. v 263 Ninth Ave. Realty, 88 AD2d 877, 879, affd 57 NY2d 1038). (Appeal from Order of Erie County Court, D’Amico, J. — Vacate Order.) Present — Green, J. P., Pine, Hayes, Callahan and Fallon, JJ.