Opinion
INDEX NO. 108588/11
11-15-2011
MARTIN MURPHY, Plaintiff(s) v. 317-319 SECOND REALTY, L.L.C., Defendant(s).
PRESENT: HON. MANUEL J. MENDEZ Justice MOTION DATE 11-09-2011 MOTION SEQ. NO. 001
Upon a reading of the foregoing cited papare, it is Ordered that plaintiff's motion by Order to Show Cause to consoidate the Civil Court Residential Landlord and Tenant Summary Holdove Proceeding titled "317-319 Second Realty, LLC v. Martin Murphy," bearing index number, L&T 095947/2010, is granted. Defendant's cross-motion pursuant to CPLR 3211 [a][1], [4] and [7] to dismiss this action, is denied.
Plaintiff brought this declaratory judgment action seeking a judgment declaring that he is a rent stabilized tenant of Apartment B. the basement located at 317-319 Second Avenue, New York, NY and asserting causes of action in the complaint for unjust ceiling and breach of the implied warranty of habitablity [Mot. Exh. A]. Plaintiff's motion seeks to consolidate this declaratory judgment action with the Civil Court holdover decisions, to have the totality of the claims heard in one forum and to avoid irrparable ham.
Defendant opposes the motion and cross-moves pursuant to CPLR 3211 [a][1], [4] and [7], to dismiss this action. Defendant claims that the plaintiff's motion should be denied because the declaratory relief sought is the same as that in the Civil Court, which is the prefred forum for this landlord and tenant dispute. Defendant also claims that the Civil Court holdover proceeding is on the trial calendat and the plaintiff cpmmenced this action seven months into the Civil Court proceeding. Defendant's cross-motion seeks to dismiss this action in its entirety caliming that the cause of action involving rent stabilization should be determined by the Civil Court. Defendant claims the remaining causes of action either do not apply to the facts or are not properly stated.
Plaintiff opposes the cross-motion claming that it is premature because there has not been discovery in this action. Planintiff also claims the October 13, 2011, Decision/Order in the Civil Court proceeding (Opp. Cross-Mot. Exh.A), establishes that the causes of action asserted in this case can only be resolved in the Supreme Court.
Consolidation pursuant to CPLR §602, lies within the discretion of the Court, but is generally favored Where there are common questions of law and fact, unless the party opposing the motion demonstrates prejudice of a substantial right The burden is on the party opposing the motion to demonstrate prejudice (Amcan Holdings, Inc. v. Torys, LLP, 32 A.D. 3d 337, 821 N.Y.S. 2d 162 [N.Y.A.D, 1st Dept., 2006]).
The Supreme Court, "has unlimited general jurisdiction overall plenary real property actions," including landlord and tenant (Chelsea 18 Partners, LP v. Sheck Yee Mak, 2011 N.Y. Slip Op. 07740 [N.Y.A.D. 1st Dept. 2011] citing to N.Y. Const. Art. VI, §7[a]). The Supreme Court has unqualified general jurisdiction and the discretion to retain cases seeking rulings in "appropriate and exceptional procedural circumstances" (Nestor v. McDowell, 81 N.Y.2d 410, 615 N.E. 2d 125, 475 N.Y.S. 2d 821 [1984]). The Civil Court has jurisdiction over landlord and tenant disputes and is the prefeddef rourum (Post v. 120 East End Ave. Corp., 62 N.Y. 19, 464 N.E. 2d 125, 475 N.Y.S. 2d, 821 [1984]). Reilef that cannot be completely obtained in the Civil Court based on its limitations, remain available in the Supreme Court including declaratory and equitable remedies (Lex 33 Associates, L.P. v. Grasso, 283 A.D. 2d 272, 724 N.Y.S. 2d 413 [N.Y.A.D. 1st Dept., 2001], North Waterside Redevelopment Company, L.P. v. Febbrar, 256 A.D. 2d 261, 682 N.Y.S. 2d 202 [N.Y.A.D. 1st Dept., 1998] and Green v. Glenbriar Co., 131 A.D. 2d 363, 516 N.Y.S. 2d 670 [N.Y.A.D. 1st Dept., 1917]).
The plaintiff seeks declarator relief that he is the rent stabilized tanant of the apartment. A trial to determine whether plaintiff is the rent the stabilized tanant is also scheduled for November 17, 2011, in a Civil Court, Residential Landlord and Tenant Summary Holdover Proceeding titled "317-319 Second Realty, LLC v. Martin Murphy," bearing index number, L&T 095947/2010. Although the Civil Court is the prefered forum, the October 13, 2011, Decision/Order of Judge John Henry Stanley, granted defendant's motion to dismiss counterclaims based on the provisions of a lease agreement. The proceeding beacause,"...Paragraph 33 of that same lease contanins a 'no counterclaim' provision."(Mot. Exh. H). The plaintiff is not able to proceed with his second, third and fourth causes of action in the Civil Court proceeding and seeks to consolidate the actions to have the totality of the claims heard in one forum. Defendant has failed to sufflciently establish that it is prejudiced by having the declaratory and equitable relief sought in this action consolidated with the holdover proceeding.
A motion to dismiss pursuant to CPLR §3211[a][1], on the ground that the action is barred by documentary evidence, requires the Court to construe every fact plaintiff has alleged as true, The party making the motion to dismiss must produce documentary evidence, that, "utterly refutes plaintiff's factual allegations, conclusively establishing. a defense a matter of law." (Leon v. Martinez, 84 N.Y. 2d 83, 638 N.E. 511, 614 N.Y.S. 2d 972 [1994] and AG Capital Funding Partners , L.P. v. State Street Bank and Trust Go., 5 N.Y. 3d 582, 842 N.E. 2d 471, 808 N.Y.S. 2d 573 [2005]).
Defendant has not provided documentary evidence that utterly refutes plaintiff's allegations and the motion to dismiss pursuant to CPLR §3211 [a][1], is denied.
Pursuant to CPLR §3211[a][4], an action may be dismissed on the ground that the action is barred because there is another action pending between the same parties seeking the same relief for the same causes of action in any court of the state. A motion pursuant to CPLR §3211[a][4] requires the relief in both actions be the same or substantially the same (White Light Productions, inc. v. On the Scene Productions, Inc., 231 A.D. 2d 90,660 N.Y.S. 2d 568 [N.Y.A.D. 1st Dept., 1997]). Pursuant to CPLR §3211[a][4], "the court need not dismiss upon this ground but may make such order as justice requires"(McKjnney's Cons. Laws of NY, Book 7B, Civil Practice Law and Rules Law §3211). The characterization of damages in a different manner does not "In and of itself" create a substantial difference between actions (L-3 Communications Corporation v. Safent, Inc., 45 A.D. 3d 1, 841 N.Y. 2d 82 N.Y.A.D. 1st Dept., 2007]).
Dismissal of the action pursuant to CPLR §3211[a][4], is in the discretion of the Court. Plaintiff's second, third and fourth causes of action were dismissed as counterclaims in teh Civil Court because of lack of jurisdiction or a prohibition in the lease, and not because they lacked merit. This Court finds that consolidation will result in eliminating two different pending actions, potentially conficting determinations and provide a relief that cannot be obtained in the Civil Court. Defendant's motion to dismiss pursuant to CPLR §3211[a][4], is denied.
A motion to dismiss pursuant to CPLR §3211[a][7], requires a reding of the pleadings to determine whether a legally recognizable cause of action can be identified and it is properly pled. A cause of action does not have to be skillfully prepared but does have to present facts so that it can be identifled and establish a potentially meritorious claim. Allegations are generally deemed true (Leon v. Martinez, 84 N.Y. 2d 83, supra and Rovello v. Orofino Realty Co., 40 N.Y. 2d 643, 389 N.Y.S. 2d 17 [1976]). Documentary evidence that contradicts the allegations, or pleadings that consist of bare legal conclusions will not be presumed to be true and are a basis for dismissal (Morgenthow & Latham v. Bank of New York Company, Inc., 305 A.D. 2d 74, 760 N.Y.S. 2d 438 [N.Y.A.D. 1st Dept., 2003]).
Defendant claims that the plaintiff's third and fourth causes of action do not sufficiently stated a claim for illegal construction resulting in repair and clean-up and for breach of warranty of habitability because he is not a tenant, but a licensee. Defendant claims that it is not lible for repari and clen-up becauss it is not an insurer for any alleged damages. There has been no final determination concerning whether plaintiff is a rent atabilized tenant and no proof submitted that the lease is expired or terminated. There is also insufficient proof provided by the defendant that the plaintiff is solely llable for repair or botaining insurance for damages to the property caused by its contractor.
A claim of unjust enrichment seeks a determination in equity of whether the defendant can in good conscience be permitted to retain what plaintiff seeks to recover. A determination will be made concerning whether a benefit was conferred that remains with the deendant. Privity of contract is not requisred for a claim of unjust enrichment (Paramount Film Distrib. Corp. v. State of New York, 30 N.Y. 2d 415, 285 N.E. 2d 695, 33 N.Y.S. 2d 388 [1972] and Sperry v. Crompton Corp., 8 N.Y. 3d 204, 863 N.E. 2d 1012, 831 N.Y.S. 2d 388 [2001]).
Defendant seeks to dismiss the second cause of action pursuant to CPLR §3211[a][7], stating that it is not a legally recognizable claim because unjust enrichment would only apply to the prior owner of the premises. Defendant claims that the plaintiff cannot establish it was unjustly enriched because the benefits were provided at the prior landlord's behest, and there was no reliance or inducement oh its behalf. Plaintiff claims the issue of enrichment follows title to the building because the apartment is now substantially more valuable based on the agreement with the prior landlord and the defendant will reap that benefit This Court finds that there is a potentially meritorious claim asserted and the defendant has not sufficiently established a basis for dismissal of the; second cause of action.
Defendant has failed to sufficiently establish the lack of merit to the second, third and fourth causes of action and the motion pursuant to cplr 3211[a][7], is denied.
Accordingly, it is ORDERED that, it appearing that the Civil Court of the City of New York does not have jurisdiction to grant the full relief to which the parties are entitled in the case of "317-319 Second Realty, LLC v. Martin Murphy," bearing Index number, L&T 095947/2010. The motion of plaintiff herein to remove sald action to this Court, is granted, and it is further,
ORDERED that movant is directed to serve a certified copy of this Order on the Clerk of the Civil Court, who shall, upon such service and the payment of any fees, transfer to this Court all of the papers heretofore filed in said action; and it is further
ORDERED that, the asid Civil Court proceeding shall be consolidated with this action under index number of this action, and it is further
ORDERED that, the papers heretofore filed in said Civil Court action and in this action shall stand as the papers in the consolidated action, and it is further
ORDERED that, a copy of this Order with Notice of Entry shall be served on the County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room 158), who shall mark their records to records to reflect this consolidation, and it is further
ORDERED that, the defendant's cross-motion pursuant to CPLR §3211[a][1],[4],[7], to dismiss this action, is denied and it is further
ORDERED that, the defendant shall within twenty days from the date of service of a Clerk of this Court.
This constitutes the decision and order of this court. Dated: November 15, 2011
/s/_________
MANUEL J. MENDEZ
J.S.C.