Opinion
0112222/2006.
Dated July 31, 2007.
Decision and Order
Upon the foregoing papers, it is ordered that Plaintiffs' Order to Show Cause to remove and consolidate this action seeking damages for unlawful and retaliatory eviction, housing discrimination and personal injuries with a holdover proceeding commenced in Civil Court, New York County, is granted.
Plaintiffs argue that the motion should be granted pursuant to CPLR 602 (b) because (1) the cases involve common questions of law and fact, (2) this action was commenced first, (3) the Housing Court cannot hear Plaintiffs' claim for damages as a result of discrimination, and (4) the potential for inconsistent rulings given that Plaintiffs' affirmative defenses to the holdover include defenses of retaliation and discrimination. Defendants claim that the holdover proceeding was brought based on the natural expiration of Plaintiffs' lease and deny any wrongdoing. Defendants devote most of their opposition to their position that the Court already determined in its Decision and Order, dated March 12, 2007 (the Prior Decision) that there were no common issues of fact or law in the two cases. Defendants also oppose the motion on the basis that Housing Court is the preferred forum for landlord-tenant matters.
Contrary to Defendants' contention, the Court never determined that the cases had no common issues of fact or law. In the Prior Decision, now being appealed by Plaintiffs, the Court denied Plaintiffs' motion for a default judgment and allowed Defendants to serve a late Answer; denied Defendants' request for leave to serve a pre-answer motion to dismiss; and denied Defendants' request to stay this action because of the pendency of the holdover proceeding. Defendants' request for leave to file a pre-answer motion was unusual considering Defendants' posture in the litigation. The Court found that Defendants' request for a stay of this action, "is in any event inappropriate as the affirmative defenses relate only to the issue of dismissal of the holdover or payment of use and occupancy and the Supreme Court is the appropriate Court for Plaintiff's action for damages." Not only was the Court not presented with the issue of whether the holdover proceeding should be removed and consolidated with this action, but the Court merely explained that a stay was inappropriate because even if Plaintiffs prevailed in Housing Court on its discrimination defense, that would result only in dismissal of the holdover petition, as opposed to any finding on damages. This action and the holdover proceeding do in fact involve common issues of fact and law, and there is a risk of inconsistent rulings in the absence of consolidation. Although the Housing Court is the preferred forum to litigate landlord-tenant matters, the allegations here go beyond typical landlord-tenant matters. Accordingly, pursuant to CPLR 602 (b), removal and consolidation is appropriate.
Defendants have not demonstrated that they would lose a substantial right if this Court granted removal and consolidation. Defendants point to the fact that 430 Realty Co. already made a motion for summary judgment in the Housing Court, seeking dismissal of Plaintiffs' affirmative defenses, including the Eighth and Ninth Affirmative Defenses for violation of federal and state discrimination laws. Defendants claim that they would be deprived of a speedy resolution to the holdover proceeding, based on the assumption that the motion would be granted. Defendants attach a copy of the summary judgment motion, but not Plaintiffs' opposition. Defendants have not demonstrated that the corporate landlord would in fact prevail on the motion, based on the conclusory statements that no discrimination occurred.
It is hereby
ORDERED that Plaintiffs' motion is granted; and it is further
ORDERED that the Clerk of the Civil Court, New York County is directed to transfer the papers on file in the holdover proceeding entitled430 Realty Co. v Pagan. Index 90037-06 to the Clerk of this Court upon service of a copy of this Decision and Order with notice of entry; and it is further
ORDERED that upon removal, the Clerk of this Court is directed to consolidate the holdover proceeding with this action, upon service of a copy of this Decision and Order with notice of entry; and it is further
ORDERED that the pleadings in the actions shall stand as the pleadings in the consolidated action; and it is further
ORDERED that Plaintiffs submit a proposed order amending the caption to reflect the consolidation, which order shall provide for service on the Clerk of the Court and the Clerk of the Trial Support Office (Room 158).
This constitutes the Decision and Order of the Court.