Opinion
xxxxx/xxxx
07-14-2017
L.G., Plaintiff, v. E.G.G., Defendant.
The following papers numbered 1 to 11 read herein: Papers Numbered Opposing Affidavits (Affirmations) 4-7 Reply Affidavits (Affirmations) 8-9 Transcripts of Oral Arguments dated May 9 and 25, 2017 10-11
Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1-3
Upon the foregoing papers, in this action by plaintiff L.G. against defendant C.G.G. for divorce and ancillary relief, plaintiff moves, by order to show cause, under motion sequence number four, for an order: (1) consolidating this action with the plenary action commenced by him on April 25, 2017 in the Supreme Court, Kings County, against defendant and Aaron Lebovitz, along with 89 Macon Street LLC, All Boro Developers, Inc., Park Developers & Builders, Inc., Park Premium Enterprises, and 12 Verona LLC (collectively, the Lebovitz entities), and Thomas Torto (Torto) (Gordon v Gordon, et al., Sup Ct, Kings County, index No. 508106/17) (the plenary action), wherein he is seeking, among other relief, to set aside and void an allegedly fraudulent conveyance of property, located at 89 Macon Street, in Brooklyn, New York (the Macon property) by defendant to 89 Macon Street LLC, which he claims was made in anticipation of divorce and to delay, hinder, and defraud him, and (2) consolidating this action with a proceeding in the Civil Court, Kings County (89 Macon Street LLC v Gordon, Civil Court, Kings County, index No. LT-087840/15K1) (the eviction proceeding), which was brought by 89 Macon Street LLC to evict him from his residence at the property.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff and defendant were married on October 31, 2004. No children were born of the marriage. On February 12, 2007, during the marriage, defendant acquired sole title to the Macon property, which is a four-story, six-unit residential building, in order to use it as an investment property to generate income. The purchase price paid for the Macon property was $760,000. Defendant states that while both she and plaintiff contributed towards the acquisition of the Macon property, only she paid for repairs and significant improvements to the Macon property, resulting in its complete overhaul, and that she was the one who managed it and solely made all mortgage payments. During the marriage, plaintiff and defendant resided together at No.# Essington Lane in Dix Hills in Long Island, and did not use the Macon property as their marital residence.
The parties had marital problems, which included multiple instances of domestic violence by plaintiff against defendant, including two incidents of physical assault in March 2010, in which the police were called, and an incident of physical assault on August 9, 2010, in which plaintiff was arrested and an order of protection was issued against him, and he was ordered to undergo psychiatric evaluation. On April 9, 2012, defendant filed a divorce action against plaintiff, and plaintiff went to live in apartment #2 at the Macon property. By a so-ordered stipulation dated March 26, 2013, defendant discontinued her divorce action, and she and plaintiff sought counseling. Plaintiff continued living at the Macon property. According to defendant, she did not want the marriage to end, but had filed the divorce action to get plaintiff's attention, hoping that he would see that the marriage was in trouble and make the necessary adjustments.
Defendant asserts that the mortgage on the marital residence went into arrears and her credit score plunged. She states that she pleaded with plaintiff for financial assistance, but he ignored her. In an email dated January 7, 2015, defendant told plaintiff that, as she had previously informed him numerous times, she needed financial help to pay for the upkeep of the marital residence in Long Island and to pay the mortgage at the Macon property.
On May 28, 2015, defendant sold the Macon property to 89 Macon Street LLC for $690,000. Defendant claims that she sold the Macon property because she needed the money, and that she used the proceeds of this sale towards paying the marital debts.
On August 4, 2015, over two months after the sale of the Macon property, plaintiff filed this action for divorce against defendant. In an appraisal dated November 30, 2016, Scott H. Gallant stated that he inspected the Macon property on November 4, 2016 and appraised it as having a fair market value of $1.4 million as of May 28, 2015, the date of its sale.
After the sale of the Macon property to 89 Macon Street LLC, plaintiff continued to reside at apartment #2 at the Macon property. On September 10, 2015, 89 Macon Street LLC commenced the eviction proceeding, which was a holdover proceeding, against plaintiff, seeking to remove him from the Macon property and to gain possession of it. After several appearances, 89 Macon Street LLC defaulted on January 14, 2016 when the eviction proceeding was transferred to a trial part, and it subsequently moved to vacate the default and restore the proceeding to the calendar for trial. Plaintiff opposed 89 Macon Street LLC's motion and asserted that he was the spouse of defendant, the former owner, and that defendant improperly disposed of the Macon property, which was marital property.
In an April 26, 2016 decision and order, Judge Cheryl J. Gonzales granted 89 Macon Street LLC's motion to restore the matter to the calendar for trial. In so ruling, Judge Gonzales stated that the Civil Court did not have jurisdiction to hear or determine the claims made by plaintiff that the Macon property was marital property, and that if plaintiff wished to have this claim addressed with respect to contesting his eviction, he would have to make the appropriate motion in the divorce action to have the eviction proceeding consolidated with the divorce action. Plaintiff made two motions to this court to consolidate the eviction proceeding with this action. By an order dated June 9, 2016, the first of these motions was denied due to plaintiff's failure to appear on the motion. By an order dated August 4, 2016, the second of these motions was denied for failure to serve the motion. On June 17, 2016, plaintiff defaulted in the eviction proceeding and a judgment of possession was issued against him.
On August 11, 2016, plaintiff, who had changed counsel following his prior attorney's suspension from the practice of law, moved to vacate his default in the eviction proceeding on the grounds that the Macon property was marital property and its sale to 89 Macon Street LLC was fraudulent. By an order dated August 11, 2016, Judge John H. Stanley granted plaintiff's motion and held that his claims that the Macon property was marital property and that its sale was fraudulent had to be addressed in the divorce action. He granted an adjournment to October 4, 2016 to allow plaintiff to file a motion to consolidate the eviction proceeding with this divorce action. Plaintiff did not file any motion.
On December 8, 2016, the eviction proceeding was about to begin a trial. At that time, plaintiff's attorney and 89 Macon Street LLC's attorney entered into a Stipulation of Settlement dated December 8, 2016. The Stipulation of Settlement provided for a final judgment of possession in favor of 89 Macon Street LLC with a warrant of eviction to issue forthwith, and further provided that the execution of the warrant of eviction would be stayed until February 28, 2017. It also provided that time was of the essence and that no further extensions of the issuance and execution of the warrant of eviction could be had in this proceeding. In addition, it set forth that 89 Macon Street LLC waived all use and occupancy from the date when ownership of the Macon property was conveyed to it up until February 28, 2017. Pursuant to the stipulation, a final judgment of possession and warrant of eviction was entered in the eviction proceeding on December 14, 2016, with the execution of the warrant stayed until February 28, 2017.
On March 2, 2017, a person to whom plaintiff allegedly granted a sublease in November 2016 filed an order to show cause in the eviction proceeding, asking for additional time to vacate the Macon property and claiming that it was his residence. 89 Macon Street LLC opposed the motion on the ground that it was a bogus application designed to hold off the impending eviction of plaintiff from the Macon property. On March 30, 2017, Judge Gonzales, after argument, denied the motion, holding that the subtenant did not present a valid claim. She held that all stays were vacated, and that the warrant of eviction could be executed.
On April 6, 2017, plaintiff made another motion in the eviction proceeding for more time to vacate the Macon property. He alleged that he had a new apartment, which would not be ready for him to occupy until May 1, 2017. By an order dated April 14, 2017, Judge Gonzales granted plaintiff's motion to the extent that she stayed the execution of the warrant of eviction to April 30, 2017 in order to allow plaintiff time to vacate the Macon property.
On April 25, 2017, plaintiff filed the plenary action, which alleges 19 causes of action against defendant, Lebovitz (who is a member of 89 Macon Street LLC, and who, plaintiff alleges, created and controls it), the Lebovitz entities (which includes 89 Macon Street LLC and which, plaintiff claims, are entities through which Lebovitz conducts his real estate business), and Torto (who is the attorney who represented 89 Macon Street LLC in connection with defendant's sale of the Macon property). Plaintiff, in his 50-page complaint in the plenary action, alleges that the Macon property was fraudulently conveyed to 89 Macon Street LLC. Plaintiff, in his complaint in the plenary action, also alleges causes of action under Debtor and Creditor Law § 273, § 273-a, § 274, § 275, § 276, § 276-a, § 277,§ 278, and § 279, as well as causes of action for fraud, conversion, breach of fiduciary duty, civil conspiracy to commit a tort, punitive damages, unjust enrichment, collusion, aiding and abetting fraud, and recovery of his counsel fees and costs. Plaintiff seeks a declaratory judgment nullifying, ab initio, defendant's transfer of the Macon property to 89 Macon Street LLC, compensatory damages of no less than $2 million, and punitive damages of no less than $2 million.
On April 26, 2017, plaintiff filed an emergency order to show cause in the plenary action, seeking to stay his eviction from the Macon property. By the order to show cause, which was signed by Justice Bernard J. Graham, plaintiff obtained a temporary restraining order staying the eviction that was scheduled by the City Marshal on May 1, 2017. On April 28, 2017, plaintiff brought a postjudgment order to show cause in the eviction proceeding, which, again, asserted equitable claims. Justice Gonzales signed the temporary restraining order and made the motion returnable on May 8, 2017.
On May 1, 2017, Justice Graham vacated the temporary restraining order that he had signed in the plenary action on April 26, 2017, stating that plaintiff had given only a partial history of the divorce action and the eviction proceeding, and that there was no legal basis for a temporary restraining order. On May 3, 2017, plaintiff appealed Justice Graham's May 1, 2017 decision to lift the temporary restraining order issued in the plenary action to the Appellate Division, Second Department. The Appellate Division signed plaintiff's order to show cause for leave to appeal, but it declined to issue another temporary restraining order. On May 8, 2017, Judge Gonzales heard oral argument on plaintiff's order to show cause in the eviction proceeding, and issued a decision and order denying plaintiff's motion and lifting the temporary restraining order issued in the eviction proceeding.
On May 9, 2017, plaintiff filed the instant motion, by order to show cause, in this divorce action, seeking consolidation of this divorce action with the plenary action and the eviction proceeding. Defendant, along with Lebovitz (who actually spells his name Lebovits) and the Lebovitz entities oppose plaintiff's motion. The order to show cause sought a stay of all warrants that may issue for plaintiff's eviction from the Macon property and enjoined 89 Macon Street LLC from transferring, selling, assigning, or in any way transferring title to, or in any way encumbering the Macon property, pending oral argument of plaintiff's motion for consolidation. The May 9, 2017 order to show cause was signed by the court following oral argument on that date on the issue of whether the stay and injunction requested in the order to show cause should be granted.
By a decision and order dated May 24, 2017, the Appellate Division, Second Department, denied plaintiff's motion in the plenary action for leave to appeal, and denied as academic plaintiff's motion therein insofar as it sought to stay enforcement of Justice Graham's May 1, 2017 order. The plenary action is presently assigned to Justice Francois A. Rivera in Part 62, and motions to dismiss, pursuant to CPLR 3211, by Lebovitz and the Lebovitz entities, defendant, and Torto are pending. Oral argument on plaintiff's instant motion in this divorce action was held on May 25, 2017, and the court continued the stay and injunction, pending a decision on plaintiff's motion. THE PARTIES, LEBOVITZ, AND THE LEBOVITZ ENTITIES' CONTENTIONS
Plaintiff contends that this divorce action and the plenary action are inextricably intertwined because all of the defenses interposed by defendant to justify the fraudulent conveyance are the ones that will be before the court in determining the equitable distribution of the Macon property. He argues that defendant will not be prejudiced by consolidation at this belated time because there was not a lot of legal work performed in this divorce action.
Plaintiff asserts that the transfer to 89 Macon Street LLC was fraudulent based on the sales price paid by 89 Macon Street LLC, and that contrary to defendant's claim, she did not need to transfer the Macon property in order to obtain money to pay marital debts. He claims that defendant owns at least five rent-producing properties and has substantial cash flows. Plaintiff states that the Macon property is his residence, and argues that he should be allowed to reside at the Macon property and should not be evicted from it.
Defendant argues that this divorce action and the plenary action involve different issues and do not involve common questions of law and fact. She asserts that the divorce action involves three real properties, bank accounts, maintenance, marital debts, deferred compensation, retirement assets, a professional practice, and a professional license, whereas the plenary action involves one property, i.e., the Macon property, sold by her before plaintiff commenced the divorce action. She states that in the divorce action, the only issue with respect to the Macon property is whether the transfer of it constituted a wasteful dissipation of a marital asset or an improper transfer made in contemplation of the divorce. She claims that the transfer of the Macon property was not a wasteful dissipation of a marital asset or an improper transfer made in contemplation of the divorce, but that she sold the Macon property in order to use the sale proceeds to pay ordinary living expenses, which inured to plaintiff's benefit. She asserts that the divorce action does not involve any question of fraud.
Defendant states that, in contrast to this divorce action, the issue in the plenary action centers solely on the Macon property. She points to the fact that in the plenary action, plaintiff alleges fraud and seeks to void the transaction with 89 Macon Street LLC, which is not a party to the divorce action. She contends that a determination of whether a conveyance is fraudulent under the Debtor and Creditor Law may only be properly made within a divorce action if the conveyance was made during the pendency of the divorce action. She further contends that transfers made in contemplation of divorce are generally made by the party who commenced the divorce action, rather than the defendant. She asserts that the transfer of the Macon property to 89 Macon Street LLC was made prior to plaintiff's commencement of this divorce action against her and did not involve any fraud. She claims that plaintiff committed waste with respect to another property located at 753 Macon Street, which he allowed to go into foreclosure, and that the issue of wasteful dissipation of marital assets is an issue which can be resolved by the equitable distribution of the marital property.
Defendant further contends that she would suffer significant prejudice if this divorce action and the plenary action were consolidated since the plenary action was commenced well after this divorce action. She points out that discovery is already foreclosed in this divorce action and has not even started in the plenary action.
Lebovitz and the Lebovitz entities assert that this court's stay should be lifted so that plaintiff can be evicted from the Macon property. They argue that this divorce action cannot be consolidated with the eviction proceeding since it was concluded, and that although Justice Gonzales has ordered that plaintiff be evicted from the Macon property, he remains there without paying anything to 89 Macon Street LLC for the apartment where he resides.
Lebovitz and the Lebovitz entities also argue that this divorce action should not be consolidated with the plenary action. They, along with defendant, contend that the instant motion is barred by RPAPL 747 and the doctrine of res judicata based upon the final judgment of possession and warrant of eviction entered in the eviction proceeding on December 14, 2016. They assert that pursuant to RPAPL 747 (2), when the Civil Court declined to adjudicate plaintiff's equitable claims in the eviction proceeding, plaintiff had 60 days from the date of the entry of the final judgment of possession, which was awarded to 89 Macon Street LLC, to interpose his claims for equitable relief in the Supreme Court. They point out that plaintiff failed to commence the plenary action within 60 days from the entry of this judgment in the eviction proceeding.
Plaintiff, in reply, argues that RPAPL 747 (2) only requires that an action be commenced within 60 days of the entry of judgment if the plaintiff is seeking affirmative equitable relief. He claims that he is seeking to set aside a fraudulent conveyance in the plenary action and that this does not constitute affirmative equitable relief, making RPAPL 747 (2) inapplicable to his claims in the plenary action.
DISCUSSION
With respect to plaintiff's motion, insofar as it seeks consolidation of this divorce action with the eviction proceeding, CPLR 602 (b) provides that "[w]here an action is pending in the supreme court it may, upon motion, remove to itself an action pending in another court and consolidate it or have it tried together with that in the supreme court" (emphasis added). The eviction proceeding has been concluded and is no longer pending in the Civil Court. Therefore, the court cannot consolidate this divorce action with the eviction proceeding, and plaintiff's motion has been rendered moot in this respect.
With respect to plaintiff's motion, insofar as it seeks consolidation of this divorce action with the plenary action, it is noted that CPLR 602 (a) provides that "[w]hen actions involving a common question of law or fact are pending before a court, the court, upon motion . . . may order the actions consolidated." This divorce action is not so related to the plenary action as to present significant common questions of law or fact (see Zeman v Zeman, 73 AD2d 602, 602 [2d Dept 1979]). This is a divorce action, whereas the plenary action is based on the legal theory of fraudulent conveyance with respect to the Macon property. In addition, the plenary action seeks damages based upon, among other claims, fraud and aiding and abetting fraud.
In an action for divorce, the court "determine[s] the respective rights of the parties in their separate or marital property, and . . . provide[s] for the disposition thereof in the final judgment" (Domestic Relations Law § 236 [B] [5] [d] [5]). The court must distribute the marital property "equitably between the parties, considering the circumstances of the case and of the respective parties" (Domestic Relations Law § 236 [B] [5] [c]). In equitably distributing marital property, the court considers "any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration" (Domestic Relations Law § 236 [B] [5] [d] [13]; see also Biagiotti v Biagiotti, 97 AD3d 941, 944 [3d Dept 2012]). The court also considers "the wasteful dissipation of assets by either spouse" (Domestic Relations Law § 236 [B] [5] [d] [12]). These equitable distribution issues differ from the issue of whether there was a fraudulent conveyance. During this divorce action, the Macon property need only be examined in the context of valuation at trial for the purpose of equitable distribution. This differs from the examining the Macon property for the purpose of determining whether there was a fraudulent conveyance of it (see Dempster v Overview Equities, 4 AD3d 495, 498 [2d Dept 2004], lv denied 3 NY3d 612 [2004]). The issue of whether there was a fraudulent conveyance need not be addressed in this divorce action since the court can provide for an equitable distribution of the parties' property.
The court cannot grant plaintiff possession of the Macon property since there has already been a final judgment of possession and a warrant of eviction entered in the eviction proceeding. Plaintiff has already been ordered evicted from the Macon property. Only the Appellate Term has appellate authority over the orders and decisions of the Civil Court (see New York State Constitution, article VI, § 8; New York City Civil Court Act § 1701). The final judgment of possession and warrant of eviction entered in the eviction proceeding by the Civil Court on December 14, 2016, and the order issued by Judge Gonzales on May 8, 2017 lifting the temporary restraining order cannot be reviewed by this court.
Plaintiff's reliance upon Henry v Soto-Henry (89 AD3d 617 [1st Dept 2011]), in arguing that the plenary action must be consolidated with this divorce action, is misplaced. In Henry (89 AD3d at 617-618), the Appellate Division, First Department, reversed a ruling by the Supreme Court, New York County, which denied a motion by the defendant-wife therein to vacate the sale of the marital residence, and remanded the matter for a hearing on whether the sale of the marital residence was a fraudulent conveyance, with the purchasers to be joined as necessary parties, and the hearing to be followed by a trial on the issue of equitable distribution. The facts in Henry are distinguishable from those in the case at bar. In Henry (89 AD3d at 618), the defendant-wife was granted exclusive use and occupancy of the marital residence, where she continued to reside with the parties' two children, and shortly before a trial on equitable distribution was scheduled to take place, the plaintiff-husband transferred the marital residence to his aunt and a friend, who then commenced proceedings in the Civil Court seeking to evict the defendant-wife. Here, in contrast, plaintiff was not granted exclusive use and occupancy of the Macon property, and no divorce action was pending at the time of the transfer (see Galgano v Ortiz, 287 AD2d 688, 688 [2d Dept 2001] [where the complaint in an action to set aside allegedly fraudulent transfers was dismissed where the transfers were made prior to the divorce action and were not made in anticipation of any debts that the wife might incur as a result of the divorce action]). While plaintiff argues that defendant made the transfer in anticipation that he would bring a divorce action against her, here, unlike in Henry, the eviction proceeding has already been concluded with a final judgment of possession entered in favor of 89 Macon Street LLC and a warrant of eviction issued.
Furthermore, "[e]ven where there are common questions of law or fact, consolidation is properly denied if the actions are at markedly different procedural stages and consolidation would result in undue delay in the resolution of either matter" (Abrams v Port Auth. Trans-Hudson Corp., 1 AD3d 118, 119 [1st Dept 2003]; see also F & K Supply v Johnson, 197 AD2d 814, 814-815 [3d Dept 1993]). Consolidation here would result in substantial delay with respect to this divorce action, which is presently ready for trial (see Zeman, 73 AD2d at 602; Adler v Adler, 57 AD2d 1014, 1015 [3d Dept 1977]; Singer v Singer, 33 AD2d 1054, 1055 [2d Dept 1970]).
While plaintiff argues that no discovery has taken place in this action and there has been very little legal work done in it, this case has been pending for nearly two years, during which plaintiff was represented by counsel. Plaintiff entered into a preliminary conference order, pursuant to which discovery was supposed to take place. There was also a compliance order, pursuant to which discovery was supposed to take place. Thus, plaintiff was afforded an opportunity to engage in discovery, and there were no motions by plaintiff to compel discovery. An appraisal of the Macon property has taken place, and the closing documents have been disclosed. Plaintiff filed his note of issue on June 15, 2016. There were two trial dates scheduled, and this divorce action is currently scheduled to begin trial on July 31, 2017.
Although two different judges in the Civil Court advised plaintiff that the eviction proceeding was not the correct forum to assert his equitable claims, plaintiff waited over four months after the December 14, 2016 final judgment of possession and a warrant of eviction was entered in the eviction proceeding before commencing the plenary action. Plaintiff did not commence the plenary action until April 25, 2017, one year and eight months after this divorce action was commenced on August 4, 2015. Plaintiff then waited until May 9, 2017 to file his instant order to show cause in this divorce action. No answers have yet been interposed and discovery has not even begun in the plenary action. There are presently outstanding motions by the defendants in the plenary action to dismiss plaintiff's complaint, pursuant to CPLR 3211, based on the statute of limitations, res judicata, and failure to state a cause of action. Given the disparity between the stages of litigation to which this divorce action and the plenary action have progressed, defendant would be substantially prejudiced by a consolidation of this divorce action and the plenary action (see Gouldsbury v Dan's Supreme Supermarket, 138 AD2d 675, 675-676 [2d Dept 1988]). Thus, plaintiff's motion, insofar as it seeks to consolidate this divorce action with the plenary action, must be denied (see Abrams, 1 AD3d at 119; F & K Supply, 197 AD2d at 814-815; Zeman, 73 AD2d at 602).
Plaintiff, in seeking to consolidate this divorce action with the plenary action at this time and in seeking a restraining order to prevent his eviction from the Macon property, is continuing his attempts to delay an eviction which has already been ordered by Judge Gonzales. In seeking an order restraining his eviction, plaintiff is requesting relief that has already been denied by Judge Gonzales and Justice Graham. Indeed, the Appellate Division denied plaintiff leave to appeal Justice Graham's vacatur of the temporary restraining order, thereby permitting plaintiff's eviction. In challenging his eviction, plaintiff is impermissibly attempting to relitigate an issue that was already resolved by the Civil Court.
"The doctrine of res judicata operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding" (Matter of Kafka v Meadowlark Gardens Owners, Inc., 34 AD3d 676, 677 [2d Dept 2006] [internal quotation marks omitted]). "[A] party is not free to remain silent in an action in which he [or she] is the defendant and then bring a second action seeking relief inconsistent with the judgment in the first action by asserting what is simply a new legal theory" (Henry Modell & Co. v Minister, Elders & Deacons of Ref. Prot. Dutch Church of City of NY, 68 NY2d 456, 461 [1986], rearg denied 69 NY2d 741 [1987], amendment denied 69 NY2d 897 [1987]). If plaintiff were successful in setting aside the conveyance of the Macon property, it would impair the rights that were established in the prior eviction proceeding, i.e., the rights of 89 Macon Street LLC to recover possession of plaintiff's apartment (see Getty Props. Corp. v Getty Petroleum Mktg. Inc., 150 AD3d 541, 542 [1st Dept 2017]; compare Wax v 716 Realty, LLC, __ AD3d __, 2017 NY Slip Op 04876, *2 [2d Dept June 14, 2017]).
Plaintiff points out that the Civil Court, in the eviction proceeding, did not have jurisdiction to entertain his claim alleging a fraudulent conveyance. "RPAPL 747 (2) . . . was enacted, at least in part, to overrule the harsh effects of [res judicata] principles in the limited situation where the restrictions on the Civil Court's jurisdiction prevent a party from seeking affirmative equitable relief in the context of a summary holdover proceeding" (Henry Modell & Co., 68 NY2d at 462). Specifically, RPAPL 747 (2) permits a plaintiff to assert a claim to recover the possession of real property in the Supreme Court, even after his or her possessory rights were adjudicated and embodied in a final judgment in a Civil Court proceeding, if the plaintiff is seeking affirmative equitable relief which was not sought by counterclaim in the Civil Court proceeding because of its limited jurisdiction. However, RPAPL 747 (2) is only applicable if the claim for equitable relief is asserted by the plaintiff in an action which is commenced in the Supreme Court no later than 60 days after the entry of the Civil Court judgment against him or her (see Haque v Rob, 83 AD3d 895, 895-896 [2d Dept 2011]). If the Supreme Court action was not commenced within 60 days of the entry of the judgment, the Civil Court judgment bars the action (see RPAPL 747 [2]; Henry Modell & Co., 68 NY2d at 463; Nissequogue Boat Club v State of New York, 14 AD3d 542, 544 [2d Dept 2005]). As discussed above, plaintiff commenced the plenary action well over 60 days after the entry of the December 14, 2016 final judgment of possession and warrant of eviction in the eviction proceeding. The issue of whether the plenary action is barred by RPAPL 747 (2) is presently the subject of the motions to dismiss in the plenary action and will be resolved by Justice Rivera.
The court, based upon the above, finds no basis to continue an order staying any warrants that may issue for plaintiff's eviction from the Macon property or enjoining 89 Macon Street LLC with respect to the Macon property. Plaintiff has failed to make the requisite showing for such a stay or injunction, and such relief would undermine the prior judgment in the eviction proceeding, as well as Justice Graham's order (see CPLR 6301; Schmitt v City of New York, 50 AD3d 1010, 1010-1011 [2d Dept 2008]).
CONCLUSION
Accordingly, it is hereby ORDERED that plaintiff's motion, insofar as it seeks an order consolidating this divorce action with the plenary action, is denied; and it is further
ORDERED that plaintiff's motion, insofar as it seeks an order consolidating this divorce action with the eviction proceeding, is denied as moot; and it is further
ORDERED that the court's stay and injunction, which was granted on May 25, 2017, is vacated.
Any issue raised and not addressed in this decision and order is hereby denied.This constitutes the decision and order of the court.
ENTER:
HON. DELORES J. THOMAS, J.S.C.