Conforti v. Carlton Regency Corp.

Full title: JAMES CONFORTI, Plaintiff(s), v. THE CARLTON REGENCY CORP., and COOPER…

Court: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - PART 57

Date published: Dec 1, 2010

2010 N.Y. Slip Op. 33921 (N.Y. Sup. Ct. 2010)

Opinion

Index No.: 600288/2010

12-01-2010

JAMES CONFORTI, Plaintiff(s), v. THE CARLTON REGENCY CORP., and COOPER SQUARE REALTY, INC., Defendant(s).

Marcy S. Friedman

PRESENT: Hon. , JSC

DECISION/ORDER

In this action, defendants Carlton Regency Corp. and Cooper Square Realty, Inc. (collectively Carlton) move, pursuant to CPLR 3211(a) (4) and (7), to dismiss plaintiffs sixth and seventh causes of action, on the ground, among others, that the claims are duplicative of plaintiff's defenses in three underlying non-payment proceedings pending in Civil Court, New York Cpunty, entitled The Carlton Regency Corp, v James Conforti, Index Nos. L&T 054526/10, 054527/10 and 054528/10. Plaintiff cross-moves to remove and consolidate the Civil Court proceedings with the instant action, on the ground that plaintiff cannot obtain full relief in the Civil Court actions.

With respect to the branch of defendant's motion seeking dismissal under CPLR 3211(a)(4), the court finds that the Civil Court proceedings are not prior actions pending, as the petitions were served after commencement of the Supreme Court action. Nevertheless, a stay is appropriate as to plaintiff's claims in this action that duplicate his defenses in the Civil Court proceedings. (Sec 952 Assocs., LLC v Palmer, 52 AD3d 236 [1^st Dept 2008].)

In the instant action, plaintiff contends that the special assessment imposed by defendant Carlton has a "disproportionate impact" on him (sixth cause of action), and seeks damages as a result of the assessment (seventh cause of action.) In Civil Court, respondent Conforti alleges as his fourth defense that the annual assessment results in a disproportionate impact on him. (See e.g. Conforti's Answer [Index No. L&T 054527/10] ¶ 14.) Moreover, Carlton has a pending motion in the Civil Court proceedings to strike Conforti's defenses, including his defense that the assessment is unlawful. (See Joseph Aff. In Support Of Cross-Motion 28.)

It is well settled that the Civil Court is the preferred forum for resolving landlord tenant disputes. (See Brecker v 295 Central Park W., Inc., 71 AD3d 564 [1^st Dept 2010]; 44-46 West 65^th Apt. Corp. v Stvan, 3 AD3d 440 [1^st Dept 2004].) RPAPL 743 provides that "[t]he answer may contain any legal or equitable defense, or counterclaim." Thus, all of the issues regarding the legality of the assessment can be heard as a defense to Carlton's non-payment proceedings.

The only relief that plaintiff Conforti cannot obtain in Civil Court is a declaratory judgment declaring the assessment void. In the event that plaintiff requires a declaratory judgment, he may return to Supreme Court, after the Civil Court determination is made, to obtain such judgment. (See 220V Electrical Dealer Supply, Inc. v Rondat, Inc., 111 Misc2d 100 [Sup Ct NY County 1981].)

It is accordingly hereby ORDERED that defendant Carlton's motion is granted to the extent of staying plaintiff's prosecution of his sixth and seventh causes of action pending determination of the Civil Court proceedings; and it is further

ORDERED that plaintiff's Conforti's cross-motion is denied; and it is further

ORDERED that the parties are directed to appear in Part 57 on Thursday, January 13, 2011, at 11:00 a.m. for a preliminary conference on plaintiffs first through fifth causes of action.

This constitutes the decision and order of the court. Dated: New York, New York

December 1, 2010

__________

MARCY FRIEDMAN, J.S.C.