Opinion
570668/10.
Decided January 14, 2011.
Landlord appeals from an order of the Civil Court of the City of New York, New York County (Brenda S. Spears, J.), dated June 7, 2010, which dismissed its summary nonpayment proceeding without prejudice to commencing a new proceeding after a final determination of a proceeding in Supreme Court, New York County, entitled Bradbury v 342 W 30th Street.
Order (Brenda S. Spears, J.), dated June 7, 2010, modified to (1) deny that branch of tenant's motion seeking dismissal of the proceeding pursuant to CPLR 3211(a)(4), (2) reinstate the petition, and (3) grant that branch of the motion seeking a stay of the proceedings pending determination of an appeal before the Appellate Division, First Department, in an action entitled Bradbury v 342 W 30th Street; as modified, order affirmed, with $10 costs to tenant, and the matter remanded to Civil Court for further proceedings consistent herewith.
PRESENT: Schoenfeld, J.P., Hunter, Jr., Torres, JJ.
Tenant commenced an action in Supreme Court, New York County, seeking a judgment declaring that the apartment at issue was subject to rent stabilization; reformation of the governing lease in accord with the court's determination of the legal regulated rent of the unit; an injunction barring landlord from increasing tenant's rent or terminating his tenancy in violation of the Rent Stabilization Code; and a money judgment for a rent overcharge. Supreme Court, following a nonjury trial, determined that tenant's apartment is protected by the Rent Stabilization Law and Code, that the legal regulated rent of the unit is $1,390.87 per month, and that landlord is liable to tenant in the amount of $58,476.48, plus interest, for a rent overcharge. Both tenant and landlord appealed the resulting judgment to the Appellate Division, First Department; the appeal was apparently perfected in November 2010 and calendared for the Court's January 2011 term.
Landlord subsequently registered with the Division of Housing and Community Renewal the legal regulated rent as determined by Supreme Court, and commenced this nonpayment summary proceeding against tenant to recover $93,188.29 in alleged arrears. In response, tenant moved for dismissal of the petition pursuant to CPLR 3211(a)(4); alternatively, tenant sought a stay of the summary proceeding pending determination of the appeal from the judgment in the Supreme Court action. Civil Court granted that branch of tenant's motion seeking dismissal of the petition without prejudice "pending the final determination of the Supreme Court proceeding." We modify.
Pursuant to CPLR 3211(a)(4), a court may dismiss an action if there is another action pending between the same parties involving the same cause of action. However, the court need not dismiss the proceeding before it where another relevant action is pending; rather, the court "may make such order as justice requires," including staying the proceeding pending the resolution of the other relevant action ( see SafeCard Services, Inc. v American Exp. Travel Related Services Co., Inc., 203 AD2d 65).
Here, issues critical to this nonpayment summary proceeding will be resolved by the Appellate Division — issues such as whether the unit is rent stabilized and the appropriate rent for the unit — and tenant is therefore entitled to some relief under CPLR 3211(a)(4) ( see generally White Light Prods. v On the Scene Prods., 231 AD2d 90). However, in light of the particular facts of this case, we conclude that a stay of the nonpayment summary proceeding pending determination of the appeal before the Appellate Division, rather than dismissal of the proceeding, is appropriate. Notably, the stay remedy provides the parties with an extant proceeding, which will expedite the resolution of issues related to landlord's nonpayment claim following the Appellate Division's determination of the appeal before it.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.