Simens v. Darwish

Full title: Inez SIMENS, etc., et al., Plaintiffs, v. Charles DARWISH, etc., et al.…

Court: Supreme Court, Appellate Division, First Department, New York.

Date published: Apr 30, 2013

105 A.D.3d 686 (N.Y. App. Div. 2013)

964 N.Y.S.2d 140

2013 N.Y. Slip Op. 3047

Opinion

2013-04-30

Inez SIMENS, etc., et al., Plaintiffs, v. Charles DARWISH, etc., et al., Defendants. Neal Fellenbaum, etc., Petitioner–Respondent, v. Smallbone, Inc., etc., Respondent–Appellant.

Rosen Livingston & Cholst LLP, New York (Andrew J. Wagner of counsel), for appellant. Zegen & Fellenbaum, New York (Neal Fellenbaum of counsel), and Peter Kolodny, New York, for respondent.

ACOSTA

Rosen Livingston & Cholst LLP, New York (Andrew J. Wagner of counsel), for appellant. Zegen & Fellenbaum, New York (Neal Fellenbaum of counsel), and Peter Kolodny, New York, for respondent.
ACOSTA, J.P., MOSKOWITZ, RENWICK, FREEDMAN, CLARK, JJ.

Order, Supreme Court, New York County (Lawrence K. Marks, J.), entered August 6, 2012, which granted the motion of petitioner Neal Fellenbaum, as Temporary Receiver, to remove the holdover proceeding pending against respondent Smallbone in Civil Court (L & T 57366–12) to Supreme Court, and consolidated that proceeding with an action pending in Supreme Court under Index No. 105097–09, unanimously reversed, on the law and the facts, without costs, and the motion denied.

The Temporary Receiver, having commenced a holdover proceeding against Smallbone, a commercial tenant, in Civil Court, where complete relief can be afforded to him, has shown no basis for removing that proceeding to Supreme Court ( see Brecker v. 295 Cent. Park W., Inc., 71 A.D.3d 564, 898 N.Y.S.2d 23 [1st Dept. 2010] ). Smallbone's counterclaims, based on partial actual and constructive eviction, are within the traditional scope of jurisdiction of Civil Court, which “is the preferred forum for resolving landlord-tenant issues” ( 44–46 W. 65th Apt. Corp. v. Stvan, 3 A.D.3d 440, 441, 772 N.Y.S.2d 4 [1st Dept. 2004] ). Thus, the court erred in granting the motion to remove the summary proceeding, which was then scheduled for a traverse hearing and trial. Moreover, the court should not have consolidated the landlord-tenant summary holdover proceeding with an entirely distinct action involving accounting, fraud, and breach of contract claims between property owners ( seeCPLR 602).