Opinion
March 11, 1971
Order, Supreme Court, New York County, entered on June 18, 1970, denying defendant's motion to dismiss the complaint; order of said court, entered on October 14, 1970, granting plaintiff's motion to dismiss the defenses in paragraphs 4 and 5 of the answer; and order of said court, entered on November 16, 1970, granting plaintiff's motion for summary judgment unanimously reversed on the law, defendant's motion to dismiss the complaint granted, plaintiff's motion denied, and the complaint dismissed. Appellant shall recover of respondent one bill of $50 costs and disbursements of these appeals. Plaintiff is a tenant in possession of an apartment in premises 68 Carmine Street, New York City. His lease expired on November 30, 1968, and, upon his failure to vacate, the defendant-landlord instituted a holdover proceeding in the Civil Court, New York County, which terminated in a final judgment of possession in favor of the landlord, based on a stipulation between the parties to that effect, but execution of the warrant of eviction was stayed until February 28, 1969. Before the stay expired, a further application to stay execution of the warrant to April 30, 1969 was granted by the court, and still another stay extended plaintiff's time to vacate the premises until May 16, 1969. The Rent Stabilization Law became effective on May 6, 1969 and plaintiff then moved in the Civil Court to vacate the judgment of possession in favor of the landlord, or to stay the warrant on the basis of the enactment of that protective statute. The court held that at the time the Rent Stabilization Law was enacted the plaintiff occupied the landlord's apartment not with the latter's consent but pursuant to the mandate of the court and the new law being prospective and not retroactive, did not protect the plaintiff. An appeal to the Appellate Term resulted in an affirmance ( Cimenti v. Burchell, 64 Misc.2d 845). Leave to appeal was denied by this court on April 9, 1970. Reargument was denied by us and we dismissed a motion for leave to appeal to the Court of Appeals on July 9, 1970. Thereafter plaintiff instituted this action in the Supreme Court seeking a declaration of his rights, injunctive relief and damages. Plaintiff has succeeded in obtaining a judgment which is inconsistent with the final disposition reached by the Civil Court, the Appellate Term and this court. Such result clearly violates the doctrine of res judicata. The prior decision was made by a court of competent jurisdiction; the issue and the parties were the same. Only the forum is different. Therefore summary judgment should have been granted to defendant dismissing the complaint on the ground of res judicata.
Concur — Capozzoli, J.P., McGivern, Markewich, Nunez and Kupferman, JJ.