Opinion
Index No. 503793/2023
08-18-2023
Marina Sambula, Plaintiff, v. Modi Realty Inc. and Girdhar Modi, Defendants.
The Law Office of Tamara M. Harris, Forest Hills (Tamara Harris of counsel), for Plaintiff. Mehrdad Kohanim, Garden City, for Defendants.
Unpublished Opinion
The Law Office of Tamara M. Harris, Forest Hills (Tamara Harris of counsel), for Plaintiff.
Mehrdad Kohanim, Garden City, for Defendants.
AARON D. MASLOW, JUSTICE
The following numbered papers were read on this application:
NYSCEF Doc No. 25: Letter from Mehrdad Kohanim, Esq. to Court, submitted by Defendants
NYSCEF Doc No. 26: Proposed Order to Show Cause, submitted by Plaintiff
NYSCEF Doc No. 27: Affirmation of Tamara Harris, Esq., submitted by Plaintiff
NYSCEF Doc No. 28: Affidavit of Marina Sambula, submitted by Plaintiff
NYSCEF Doc No. 29: Exhibit A - Complaint, submitted by Plaintiff
NYSCEF Doc No. 30: Exhibit B - Receipts, submitted by Plaintiff
NYSCEF Doc No. 31: Exhibit C - Prior Order to Show Cause, submitted by Plaintiff
NYSCEF Doc No. 32: Exhibit D - Discontinuance of Proceeding, Kings County Index No. L&T 300002-22/KI, submitted by Plaintiff
NYSCEF Doc No. 33: Affirmation re Submission of Proposed Order to Show Cause, submitted by Plaintiff
NYSCEF Doc No. 34: Exhibit E - Email re Submission of Proposed Order to Show Cause with Stay, submitted by Plaintiff
NYSCEF Doc No. 35: Letter from Mehrdad Kohanim, Esq. to Court; Petition, Kings County Index No. L&T 308586-23/KI, submitted by Defendants
NYSCEF Doc No. 36: Proposed Order to Show Cause Annotated by Court
NYSCEF Doc No. 37: Proposed Order to Show Cause Annotated by Court
The Drastic Relief Sought by Plaintiff -Tenant Sambula
On August 15, 2023, there came before this Court an application for a temporary restraining order contained within a proposed order to show cause submitted by the plaintiff Marina Sambula (referred to herein as "Plaintiff-Tenant Sambula" or "Tenant Sambula") for signature (see NYSCEF Doc No. 26, Proposed Order to Show Cause). Oral argument was conducted; appearing were Plaintiff-Tenant Sambula's counsel as well as counsel for the defendants herein Modi Realty Corp (referred to herein as "Defendant-Landlord Modi Realty" or "Landlord Modi Realty") and Girdhar Modi, its principal ("Defendant Girdhar Modi"). The within action in Supreme Court seeks an injunction against Defendants from harassing or threatening Plaintiff-Tenant Sambula and damages for breach of contract and intentional infliction of emotional distress, arising from the latter's tenancy of an outdoor parking lot located on property owned by Defendant-Landlord Modi Realty at 180 Sackman Street, in Brooklyn.
The proposed order to show cause was submitted on NYSCEF on August 14, 2023.
As shall appear, this matter bears upon the oft-litigated interplay between two parallel proceedings and whether one proceeding should take precedence over another.
Plaintiff-Tenant Sambula's proposed order to show cause sought to bring on a motion for an order "[s]taying the pending Kings County Housing Court action, Index LT-308586-23/KI pending a determination of this case" (id. at 1). A review on NYSCEF of the said "action" reveals that such "action" is not a "Housing Court action," as it is characterized in Plaintiff-Tenant Sambula's proposed order to show cause (id. at 1) but, rather, is a commercial holdover proceeding pending in the Kings County Civil Court ("Commercial Holdover Proceeding") (s ee NYSCEF Doc No. 35, Holdover Petition ¶¶ 1-3).
The holdover petition in NYSCEF Doc No. 35 is the one filed as NYSCEF Doc No. NYSCEF Doc No. 1 in Modi Realty, Inc. v Sambula-Colon, Civ Ct, Kings County, Index No. LT-308586-23/KI.
Also featured in Plaintiff-Tenant Sambula's order to show cause is a motion for a drastic temporary restraining order, which reads as follows:
IT IS FURTHER ORDERED, pending a determination of this motion the Kings County housing court action under Index LT 308586-23/KI is stayed.(NYSCEF Doc No. 26, Proposed Order to Show Cause at 1.)
The foregoing proposed temporary restraining order cannot be considered as drafted on the following two bases:
(1) A temporary restraining order is statutorily designed to allow a party to obtain relief pending a hearing on a motion, as distinguished from pending a "determination" of a motion. As provided by CPLR 6301, a "temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had" [emphasis added]; and
(2) The action sought to be stayed is not a "housing court action" but, instead, is a commercial holdover proceeding (s ee NYSCEF Doc No. 35, Holdover Petition ¶¶ 1-3).
In the interest of fairness, however, this Court shall recalibrate the application for a temporary restraining order contained within Plaintiff-Tenant Sambula's proposed order to show cause to read as follows and shall consider such application: "IT IS FURTHER ORDERED, that pending a hearing of this motion, the commercial holdover proceeding pending in the Kings County Civil Court under Index LT-308586-23/KI be stayed."
At the conclusion of the aforesaid August 15, 2023 hearing, this Court informed the parties that a decision would be issued, which decision is set forth herein.
The proposed order to show cause was annotated: "This Court declines to sign the proposed order to show cause, following oral argument today. Decision to follow. /s/ 8/15/23; 6:25 P.M.[;] Brooklyn, NY[;] Hon. Aaron D. Maslow[,] Justice of the Supreme Court" (NYSCEF Doc No. 37, Proposed Order to Show Cause annotated by Court).
The Parallel Civil Court Commercial Holdover Proceeding
The parallel Commercial Holdover Proceeding was instituted on March 14, 2023, in Kings County Civil Court, which proceeding bears L&T Index No. 308586-23/KI (see NYSCEF Doc No. 1, Petition ¶¶ 1-2, in Modi Realty, Inc. v Sambula-Colon, Civ Ct, Kings County, Index No. LT-308586-23/KI). In that proceeding, the petitioner-landlord Modi Realty, Inc., a defendant herein and the owner of the premises known as 180 Sackman Street, Brooklyn, New York ("Premises"), alleges that the respondent-tenant Marina Sambula-Colon (Plaintiff-Tenant Sambula in the instant Supreme Court action) was a month-to-month tenant of the Premises (see id.).
Landlord Modi Realty contends that Tenant Sambula's tenancy was terminated on February 28, 2023, and that more than thirty days before that date she was served with a written notice advising her of the termination of the tenancy, and that should she fail to vacate the Premises, Landlord Modi Realty would commence summary proceedings to remove her from the Premises, as well as seek use and occupancy for the holdover period (see id. ¶ 2). Landlord Modi Realty alleges that it has accepted no rent from Tenant Sambula since the expiration of the term of the lease and that Tenant Sambula continues to be in possession of the Premises as a holdover tenant without its permission (see id. ¶ 3). Landlord Modi Realty further alleges that the Premises are not a multiple dwelling and are subject to neither the rent control, nor the rent stabilization, laws of the City of New York in that the Premises are rented for commercial purposes (see id. ¶¶ 6-7).
Landlord Modi Realty seeks, inter alia, the following relief: (1) a final judgment awarding it possession of the Premises; (2) issuance of a warrant of eviction; (3) entry of a money judgment for all past due rent/use and occupancy; and (4) entry of a judgment for the payment of ongoing use and occupancy for the use of the Premises after the lease expired and during the pendency of the proceeding (see id. ¶ 8).
Absent From the Commercial Holdover Proceeding Is Any Allegation of Harassment on the Part of Landlord Modi Realty Toward Tenant Sambula
Notably absent from Landlord Modi Realty's Commercial Holdover Proceeding pending in the Kings County Civil Court is any reference to Tenant Sambula's allegations of harassment on the part of Landlord Modi Realty (s ee id. ¶¶ 1-8).
A review of Tenant Sambula's affidavit in the Commercial Holdover Proceeding reveals that, while it features cinematic language mirroring the style employed in the within parallel Supreme Court action, such as "I found the 30 day notice laying on the ground and covered in filth" (NYSCEF Doc No. 8, Sambula Aff ¶ 25, in Modi Realty, Inc.), and "The process server affidavit claiming this was affixed to a door is a total lie" (id. ¶27), such affidavit is bereft of any allegations concerning harassment or threats directed at her by Landlord Modi Realty (see id. ¶¶ 1-31). Neither is there anything to that effect in her counsel's affirmation (see NYSCEF Doc No. 7, Harris Aff ¶¶1-28, in Modi Realty, Inc.).
As shall be addressed below, the lack of any nexus between the Civil Court Commercial Holdover Proceeding and the harassment allegedly perpetrated by, or on behalf of, Landlord Modi Realty toward Tenant Sambula is of critical import to the Court's determination of this matter.
At the Core of Plaintiff-Tenant Sambula's Lawsuit Before this Court Is the Alleged Harassing Conduct of Defendants
At the heart of Plaintiff-Tenant Sambula's lawsuit pending before this Court is the alleged harassing and threatening conduct engaged in by, or on behalf of, Defendant-Landlord Modi Realty and its principal, Defendant Girdhar Modi (collectively, the "Modi Defendants"), directed toward Plaintiff-Tenant Sambula (see NYSCEF Doc No. 29, Complaint ¶¶ 11-21, 36).
In her affidavit in support of her order to show cause, Plaintiff-Tenant Sambula alleges that she has rented a lot of land from Defendant-Landlord Modi Realty at 180 Sackman Street, Brooklyn, New York for approximately three years, which lot is used as an outdoor "parking garage" (NYSCEF Doc No. 28, Sambula Aff ¶12), i.e., a parking lot. Plaintiff-Tenant Sambula claims that she has rented the plot of land in question based on a verbal agreement with the Modi Defendants to pay a $2,500 monthly rent and that she has assiduously timely paid rent (see NYSCEF Doc No. 29, Complaint at ¶¶ 5-6).
Plaintiff-Tenant Sambula asserts that originally she paid Defendant Girdhar Modi in cash, per his preference (see NYSCEF Doc No. 28, Sambula Aff ¶ 15). However, Plaintiff-Tenant Sambula claims that in 2021, she started paying rent via money order since she wished to establish a record of her $2,500 monthly payments, which shift in payment method rendered Defendant Girdhar Modi irate (see id. ¶¶ 16-17).
Plaintiff-Tenant Sambula alleges that Defendant Girdhar Modi surreptitiously commenced an eviction proceeding in 2022 without serving her with process and continued to collect rent, which Plaintiff-Tenant Sambula contends she paid in the form of money orders (see NYSCEF Doc No. 29, Complaint ¶ 10).
It was assigned Index No. LT 300002-22/KI by the New York City Civil Court.
Plaintiff-Tenant Sambula contends that, in tandem with the eviction proceeding, the Modi Defendants undertook a harassment campaign directed at her so she would vacate the Premises (see id. ¶ 11).
Plaintiff Alleges that Defendants Arranged to Have Someone Threaten to "Drag You Out by Your Tongue"
Plaintiff-Tenant Sambula reports that to compel her to vacate the Premises while the 2022 eviction proceeding was underway, "defendant sent a bunch of thugs to my business in August 2022 to threaten me with violence" (id. ¶ 19). About seven men showed up at my business and began yelling and screaming at customers telling them to get in their cars and get out of there, because no parking was allowed in my garage" (id. ¶ 20).
Plaintiff-Tenant Sambula claims that "These men began screaming at me to get out of my office, demanding I vacate and telling me they worked for the owner," and "None of them would identify themselves by name" (id. ¶¶ 21-22).
Plaintiff-Tenant Sambula describes the harrowing scene as follows in her affidavit:
23. One of them - who wore chains around his neck and looked like a gang leader-stood out because he was more aggressive and threatening than the rest.
24. I had never seen this man before in my entire life but he scared me immensely.
25. At the time the man in chains approached my office, he demanded I vacate the space telling me he was the "marshal" and that he was "in charge".
26. I refused his demands and told him to show me his ID, to prove he was the "marshal".
27. Another man, who was dark skinned, heavy-set and had a beard, broke into my office when I would not open the door, slammed the door and began opening and slamming drawers.(Id. ¶¶ 23-27.)
Plaintiff-Tenant Sambula further describes the occurrence as follows:
28. In the process of slamming the door and drawers, he grabbed the keys that belonged to people who had already parked their cars [my customers] and told me either I leave voluntarily or that he would resort to violence.
29. His exact words were "I will drag you out by your tongue," while insisting he was the "owner."
30. The man in chains dropped a business card on the floor inadvertently, while trying to scare off customers.
31. When I picked up the card it identified the man in chains as Robert Yeganeh, and indicated he was a real estate salesperson.
32. These thugs took my client's car keys and refused to return them, interfering with the operation of my business-whereby customers pay to park.
33. Police were called and the men informed the police that they were sent by the owner and there was a housing court case going on.
34. The police informed me to go to court right away to file for emergency relief against the landlord.(Id. ¶¶ 28-34 [emphasis added].)
Plaintiff-Tenant Sambula recounts as follows the denouement of this episode:
35. When I got to Landlord Tenant Court I learned that the landlord had brought an eviction proceeding and that, because I was never served, that a default judgment had been entered.
36. When I found out what the Landlord had done, I filed an emergency OSC in housing court advising the court I had never been served; and obtained an emergency stay from the housing court.
37. Since there was no affidavit of service from any process server in the housing court file, and defendant's L&T lawyer falsely claimed to have also been the process server (violating the attorney-witness rule), the housing court Judge admonished the landlord's counsel.
38. The housing court Judge advised defendant's attorney that he could not be both attorney and witness at a Traverse hearing
39. The housing court judge further advised that, based on the facts of this case, he planned to issue a scathing decision against defendant [Modi Realty in the instant action] if this case was not voluntarily discontinued by Modi Realty's counsel.
40. The Court warned Modi's counsel that if the case was not voluntarily discontinued before the Traverse hearing (set for January 6, 2023), the decision that followed that hearing would be damning for both counsel and his client.
41. One day before the Traverse hearing was set to go forward (on January 5, 2023), Modi's attorney voluntarily discontinued the case-heeding the Court's warning that it would issue a scathing decision [about the lack of service in the case and the methods Modi Realty used to obtain a lawless eviction]... if Modi's lawyer did not voluntarily discontinue.(Id. ¶¶ 35-41.)
Plaintiff-Tenant Sambula's repeated references to a purported proceeding in "housing court" are belied by the record. The proceedings brought in Kings County Civil Court have been held in the context of commercial holdover proceedings. (See NYSCEF Doc No. 35, Holdover Petition at ¶ 1-3).
Plaintiff-Tenant Sambula's Argument in Favor of a Stay of the Commercial Holdover Proceeding
Thereafter, another eviction proceeding was commenced by Landlord Modi Realty in 2023 against Tenant Sambula. Plaintiff-Tenant Sambula posits that this Court should grant her drastic request for a temporary restraining order, as well as a preliminary injunction, staying the 2023 Commercial Holdover Proceeding on the basis that the Commercial Holdover Proceeding pending in Kings County Civil Court "involves duplicative claims that are already being litigated in this Court." (NYSCEF Doc No. 27, Harris Aff ¶ 58). Plaintiff-Tenant Sambula asserts:
It was assigned Index No. LT 308586-23/KI by the New York City Civil Court.
[A] stay will avoid duplication of litigation and waste of judicial resources since it makes no sense to be litigating duplicative claims in two different courts, involving the exact same parties and issues, when this case was filed months before the housing court matter.(Id. ¶ 60).
Plaintiff-Tenant Sambula's Request for a Stay of the Commercial Holdover Proceeding Is Unavailing on Three Independent Grounds
Albeit endowed with surface appeal, Plaintiff-Tenant Sambula's request that this Court issue a temporary restraining order, as well as a preliminary injunction, staying the Commercial Holdover Proceeding on the ground that the latter proceeding "involves duplicative claims that are already being litigated in this Court" (id. ¶ 58) is unavailing on three independent bases.
First Basis Warranting Denial of Plaintiff's Motion for a Stay- The Parallel Proceedings are on Tracks That Do Not Intersect
The first independent basis warranting the denial of Plaintiff-Tenant Sambula's application for this Court to stay the Commercial Holdover Proceeding on the basis that both proceedings involve duplicative claims, thereby raising the specter of inconsistent decisions, is straightforward. The gravamen of her motion that there are duplicative claims is at odds with the record. As the above analysis of both the present action and the Kings County Civil Court Commercial Holdover Proceeding makes clear, both proceedings, while parallel, are traveling along tracks that do not converge.
As detailed at greater length above, the Commercial Holdover Proceeding is but a mundane commercial-landlord tenant proceeding in which Landlord Modi Realty seeks a final judgment awarding it possession of the Premises, as well as the issuance of a warrant of eviction, on the basis that Tenant Sambula's month-to-month tenancy was terminated effective February 28, 2023 (see NYSCEF Doc No. 35, Holdover Petition ¶¶ 1-3, 8).
Simply put, absent from Landlord Modi Realty's Commercial Holdover Proceeding is any reference to an allegation of purported harassment on the part of Landlord Modi Realty vis-a-vis Tenant Sambula (see id. at ¶¶ 1-8; NYSCEF Doc No. 7, Harris Aff ¶¶1-28, in Modi Realty, Inc.; NYSCEF Doc No. 8, Sambula Aff ¶¶ 1-31, in Modi Realty, Inc.);
The Court understands that Tenant Sambula made a motion to dismiss in the Civil Court Commercial Holdover Proceeding which was to be argued on the day after the hearing before this Court on Plaintiff-Tenant Sambula's proposed order to show cause, and that no answer had yet been interposed in the said proceeding. Perhaps the alleged conduct of the petitioner therein (Plaintiff Landlord Modi Realty herein) would be interposed as an affirmative defense in an answer. Nonetheless this Court sees no viable argument from the perspective of landlord-tenant law which would enable Tenant Sambula to prevail in the Civil Court Commercial Holdover Proceeding on the basis of harassment of a commercial month-to-month tenant.
In contrast, at the core of Plaintiff-Tenant Sambula's lawsuit pending before this Court is the alleged harassing and threatening conduct engaged in by, or on behalf of, Defendant-Landlord Modi Realty and its principal, Defendant Girdhar Modi, directed toward her (see NYSCEF Doc No. 29, Complaint at ¶¶ 11-21, 36).
In short, the lack of any nexus between the Civil Court Commercial Holdover Proceeding and the present action vitiates Plaintiff-Tenant Sambula's order to show cause seeking a stay grounded on the notion that both proceedings involve duplicative claims.
To the extent that Plaintiff-Tenant Sambula opines that she could interpose Defendant-Landlord Modi Realty's purported harassment and threats as an affirmative defense in the Commercial Holdover Proceeding, thereby arguably giving rise to duplicative claims in both proceedings, any such line of argument would be unavailing. Indeed, any attempt on the part of Plaintiff-Tenant Sambula to contend that a warrant of eviction should not issue on the basis of the alleged harassment and threats that she alleges to have suffered owing to Landlord Modi Realty's actions would be bereft of legal support.
Plaintiff-Tenant Sambula has cited to no authority standing for the proposition that a month-to-month commercial tenant can avert eviction in circumstances where the commercial tenant establishes that his or her landlord harassed and/or threatened him or her. When pressed by the Court during the August 15, 2023 hearing, counsel for Plaintiff-Tenant Sambula was unable to formulate a limiting principle on this issue. Specifically, when the Court inquired of said counsel during the August 15, 2023 hearing how long a month-to-month commercial tenant should be permitted to avoid the issuance of a warrant of eviction in a situation where the tenant can establish that she or he was harassed and/or threatened by the landlord (for instance, one month, two months, one year or thirty years), counsel neither identified a limiting principle nor cited to any case law buttressing this novel concept.
While New York City has enacted a Non-Residential Tenant Harassment Law, creating a private right of action, it expressly provides, "A landlord's lawful termination of a tenancy, lawful refusal to renew or extend a lease or other rental agreement, or lawful reentry and repossession of the covered property shall not constitute commercial tenant harassment for purposes of this chapter" (Administrative Code of City of NY § 22-902 [b]). Therefore, Defendant-Landlord's commencement of a holdover proceeding would not constitute commercial tenant harassment, and it certainly would not provide Plaintiff-Tenant Sambula with a right to remain in possession following proper termination of her month-to-month tenancy (see 88 Greenwich Owner LLC v 21 Rector St LLC, 217 A.D.3d 432 [1st Dept 2023]; S & Y Grace Corp. v Boston Post Food Corp., 189 A.D.3d 720 [1st Dept 2020]; WCB Holdings, LLC v 421W14 Lessee, L.P., 2023 NY Slip Op 32674[U] [landlord's lawful exercise of right to recover leased space is not harassment]; Jack G. Court Street LLC v 16 Court Street Brooklyn Owner LLC, 2023 NY Slip Op 31819[U] [Sup Ct, Kings County 2023] [notice to terminate is not court proceeding]).
Insofar as Plaintiff-Tenant Sambula has failed to establish a likelihood of success on the merits, this Court has no alternative but to decline to sign her proposed order to show cause. Indeed, it is well established that, to succeed on a motion for a temporary restraining order and/or on a motion for a preliminary injunction, the movant must establish a likelihood of success on the merits. As the Second Department has held:
"To be entitled to a preliminary injunction, a movant must establish (1) a likelihood or probability of success on the merits, (2) irreparable injury absent granting the preliminary injunction, and (3) a balancing of the equities in the movant's favor (see CPLR 6312 [c]; Board of Mgrs. of Wharfside Condominium v Nehrich, 73 A.D.3d 822, 824 [2010]; Yemini v Goldberg, 60 A.D.3d 935, 936 [2009]). The decision to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court (see Gluck v Hoary, 55 A.D.3d 668, 668 [2008]; Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 A.D.3d 1072, 1073 [2008])." (Rowland v Dushin, 82 A.D.3d 738, 739 [2d Dept 2011].)
Lest there be any confusion, Plaintiff-Tenant Sambula is not deprived of avenues of redress. A forum is available to her in this very Courthouse in the present action to assert her claims for monetary damages stemming from alleged threats and harassment allegedly directed at her by, or on behalf of, Defendant-Landlord Modi Realty and its principal, Defendant Girdhar Modi.
Second Basis Warranting Denial of Plaintiff-Tenant Sambula's Motion for a Stay- The Courts' Strong Preference for Resolving Landlord-Tenant Disputes in Civil Court
A second independent basis exists warranting the denial of Plaintiff-Tenant Sambula's request that this Court stay the Commercial Holdover Proceeding on the ground that both proceedings "involve duplicative claims" (NYSCEF Doc No. 27, Harris Aff ¶ 58)).
New York courts have long expressed a strong preference for resolving landlord-tenant matters in Civil Court due to its expertise in this arena. As such, courts have held that a landlord-tenant proceeding pending in Civil Court should only be stayed in narrowly circumscribed circumstances, to wit, when the Civil Court lacks the authority to grant the relief sought in the proceeding. As an appellate court has held in a landlord-tenant proceeding in reversing the Supreme Court's grant of the defendants' motion for an injunction staying a Civil Court summary holdover proceeding,
We reverse. The Civil Court is the preferred forum for resolving landlord-tenant issues (see Post v 120 E. End Ave. Corp., 62 N.Y.2d 19 [1984]; Cohen v Goldfein, 100 A.D.2d 795 [1984]). Indeed, "[o]nly where Civil Court is without authority to grant the relief sought should the prosecution of a summary proceeding be stayed" (Scheff v 230 E. 73rd Owners Corp., 203 A.D.2d 151, 152 [1994]). Thus, given the strong preference for resolving landlord-tenant disputes in Civil Court due to its unique ability to resolve such issues, the Supreme Court erred in staying the summary holdover proceeding. Even if there were no strong preference for adjudicating landlord-tenant proceedings in Civil Court, defendants here did not make the requisite prima facie showing to obtain an injunction staying the summary holdover proceeding (see CPLR 6301, 6312; Koultukis v Phillips, 285 A.D.2d 433 [2001]).
Although on the face of the appellate record presented, neither side requested consolidation before the nisi prius court, both sides, on appeal, make perfunctory requests to consolidate the Supreme Court action and Civil Court proceeding. However, consolidation is inappropriate given the distinct nature of the respective causes and the prejudice to plaintiff in depriving it of the appropriate recognized forum for a summary holdover proceeding (see CPLR 602; Post, supra, 62 N.Y.2d at 28 [Civil Court has jurisdiction of landlord/tenant disputes and when it can decide dispute, "it is desirable that it do so"]). Moreover, neither side contends that the Civil Court is incapable of determining the holdover proceeding, "and, thus,... ha[s] not established the necessity for consolidation" (Scheff, supra, 203 A.D.2d at 152).(44-46 W. 65th Apt. Corp. v Stvan, 3 A.D.3d 440, 441-442 [1st Dept 2004] [emphasis added].)
The Second Department has echoed the First Department's position that the Civil Court is the optimal forum to adjudicate landlord-tenant disputes, in reversing as follows the Supreme Court's order granting the plaintiff's motion to enjoin a landlord-tenant summary proceeding:
The Supreme Court improvidently exercised its discretion in granting the plaintiff's motion to enjoin the summary proceeding pending in District Court. The District Court, or the Civil Court, is the preferred forum for the resolution of landlord-tenant disputes where the tenant may obtain full relief in a pending summary proceeding (see Post v 120 E. End Ave. Corp., 62 N.Y.2d 19, 28 [1984]; 44-46 W. 65th Apt. Corp. v Stvan, 3 A.D.3d 440 [2004]; Spain v 325 W. 83rd Owners Corp., 302 A.D.2d 587 [2003]; DiGeronimo v Amrod, 248 A.D.2d 652 [1998]; Scheff v 230 E. 73rd Owners Corp., 203 A.D.2d 151 [1994]; Amoo v Eastlake Realty Co., 133 A.D.2d 657 [1987]).(All 4 Sports & Fitness, Inc. v Hamilton, Kane, Martin Enterprises, Inc., 22 A.D.3d 512, 513 [2d Dept 2005].)
The Court of Appeals has also entered the fray, underscoring as follows the import of permitting landlord-tenant matters to proceed in Civil Court: "Civil Court has jurisdiction of landlord tenant disputes (see CCA 204) and when it can decide the dispute, as in this case, it is desirable that it do so (Lun Far Co. v Aylesbury Assoc., 40 A.D.2d 794)" (Post v 120 E. End Ave. Corp., 62 N.Y.2d 19, 28 [1984]).
Another appellate decision has addressed as follows the courts' aversion to stay summary proceedings pending in Civil Court, emphasizing that only in circumstances where the Civil Court lacks authority to grant the relief sought should a summary proceeding be stayed, which holding was derived in part from the esteemed late Professor David Siegel's analysis of the issue:
However, there is 'a strong rule against staying a summary proceeding, or removing it, such as for purposes of a consolidation or joint trial with some proceeding in the supreme court or some other superior court' (Siegel, NY Prac § 577, at 909 [2d ed]).
This Court has consistently adhered to the rule stated by Professor Siegel (e.g., Cohen v Goldfein, 100 A.D.2d 795; Lun Far Co. v Aylesbury Assocs., 40 A.D.2d 794). Only where Civil Court is without authority to grant the relief sought should the prosecution of a summary proceeding be stayed (Lun Far Co. v Aylesbury Assocs., supra; Glen Briar Co. v Silberman, 129 Misc.2d 439, 442), notwithstanding that the Supreme Court action may have preceded commencement of the summary proceeding (Cohen v Goldfein, supra, at 797). Nor is consolidation appropriate where, as here, there are no common questions of law and fact because the property damage alleged in the tort action involves a time period prior to that for which rent arrears are sought (Earbert Rest. v Little Luxuries, 99 A.D.2d 734; Schroder Bank & Trust Co. v South Ferry Bldg. Co., 88 A.D.2d 570).
Plaintiffs-tenants do not contend that Civil Court is incapable of determining whether the conditions in their apartment constitute a violation of the warranty of habitability and, thus, they have not established the necessity for consolidation (Parksouth Dental Group v East Riv. Realty, 122 A.D.2d 708; Kanter v East 62nd St. Assocs., 111 A.D.2d 26; see also, Mannis v Jillandrea Realty Co., 94 A.D.2d 676).(Scheff v 230 East 73rd Owners Corp., 203 A.D.2d 151, 152 [1st Dept 1994] [emphasis added].)
Third Basis Warranting Denial of Plaintiff-Tenant Sambula's Motion for a Stay- Her Demand for Monetary Damages in the "Wherefore Clause" of the Complaint Undermines Her Claim of Irreparable Harm
It is well-settled that New York courts require a movant seeking a preliminary injunction and/or a temporary restraining order to establish that he or she will suffer irreparable injury should the injunction not be granted. For instance, as the Court of Appeals held, "the usual requirements to be entitled to temporary injunctive relief" are as follows:
(1) the likelihood of success on the merits; (2) irreparable injury absent granting the preliminary injunction; and (3) a balancing of the equities. (See, e.g., Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 70 A.D.2d 1021; Tucker v Toia, 54 A.D.2d 322; Albini v Solork Assoc., 37 A.D.2d 835).(W.T. Grant Co. v Srogi, 52 N.Y.2d 496, 517 [1981].)
Undermining any attempt on the part of Plaintiff-Tenant Sambula to contend that she satisfies the "irreparable harm" prong of the temporary restraining order and preliminary injunction inquiry is a fact that has been addressed by neither party, including during the extensive August 15, 2023 hearing.
In the verified complaint in the present case, Plaintiff-Tenant Sambula seeks not only injunctive relief but also tellingly seeks a monetary judgment against both Defendants as follows:
43. Defendants [sic] conduct in trying to force plaintiff out with threats of violence, including dragging her out by her tongue and sending in multiple men to harass her and customers, an [sic] steal from her was outrageous behavior that intentionally caused plaintiff to endure severe emotional distress.
44. Plaintiff has suffered severe anxiety and anguish as a result of this intentional and malicious conduct by defendants.
Wherefore, plaintiff seeks compensatory damages in the amount of $100,000 for attorney fees, court costs and lost income; emotional damages in the amount of 1 million dollars and punitive damages in the amount of 1 million dollars for the third cause of action.(NYSCEF Doc No. 29, Complaint ¶¶ 43-44 [emphasis added].)
Plaintiff-Tenant Sambula's request for a monetary judgment drastically undermines her attempt to convince this Court that she satisfies the irreparable injury requirement for the granting of a temporary restraining order and a preliminary injunction that she now seeks.
As was held on this very issue:
It has long been recognized that economic loss, compensable by money damages, does not constitute irreparable harm (Rowland v. Dushin, 82 A.D.3d 738 [2d Dept 2011]; EDCIA Corp. v. McCormack, 44 A.D.3d 991 [2d Dept 2007]). In the "WHEREFORE" clause of the objections filed by Beth and Bonnie they seek to surcharge Carl for any loss to the trust estate by reason of this and other alleged breaches of fiduciary duty by him. Carl argues, and the court agrees, that this fact alone mitigates against a finding of irreparable harm. Although respondents urge that any surcharge would be "ineffectual," there is no indication either way of Carl's financial ability to answer for any damages. Further, while Beth and Bonnie contend that a contested accounting has some equitable aspects to it, and injunctive relief is available in an equitable setting, that does not alter the obvious conclusion that a surcharge would make them whole.(Matter of Raffe, 42 Misc.3d 1236 [A], 2014 NY Slip Op 50372[U], *2 [Sur Ct, Nassau County 2014] [emphasis added].)
As the Second Department held, to satisfy the irreparable injury requirement, the plaintiff's injuries cannot be compensable by money damages:
To be entitled to a preliminary injunction, a movant must establish (1) a likelihood or probability of success on the merits, (2) irreparable injury absent granting the preliminary injunction, and (3) a balancing of the equities in the movant's favor (see CPLR 6312 [c]; Board of Mgrs. of Wharfside Condominium v Nehrich, 73 A.D.3d 822, 824 [2010]; Yemini v Goldberg, 60 A.D.3d 935, 936 [2009]). The decision to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court (see Gluck v Hoary, 55 A.D.3d 668, 668 [2008]; Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 A.D.3d 1072, 1073 [2008]).
Here, the plaintiffs did not meet their burden of demonstrating that they would suffer irreparable injury if the preliminary injunction were not granted (see Dixon v Malouf, 61 A.D.3d 630 [2009]; Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 A.D.3d 1072 [2008]; 1659 Ralph Ave. Laundromat Corp. v Ben David Enters., 307 A.D.2d 288, 289 [2003]; Khan v State Univ. of NY Health Science Ctr. at Brooklyn, 271 A.D.2d 656 [2000]; cf. Winzelberg v 1319 50th Realty Corp., 52 A.D.3d 700 [2008]). The plaintiffs failed to point to any imminent and nonspeculative harm that would befall them in the absence of the requested relief, and failed to demonstrate that any injuries they would suffer would not be compensable by money damages (see EdCia Corp. v McCormack, 44 A.D.3d 991, 994 [2007]; Neos v Lacey, 291 A.D.2d 434, 435 [2002]).(Rowland v Dushin, 82 A.D.3d 738, 739 [2nd Dept 2011] [emphasis added].)
Determination
As set forth above, insofar as Plaintiff-Tenant Sambula has failed to establish the requisite criteria for the issuance of a temporary restraining order and/or a preliminary injunction, this Court declined to sign the proposed order to show cause when presented with it on August 15, 2023, and after conducting a hearing.
Plaintiff-Tenant Sambula is instructed to provide a copy of this decision to the Kings County Civil Court in the Commercial Holdover Proceeding bearing Index LT-308586-23/KI during any hearing held in said proceeding or in the context of any motion practice arising in the proceeding in question.
The foregoing notwithstanding, Plaintiff-Tenant Sambula is not deprived of avenues of redress. A forum is available to her in the present action to assert her claims for monetary damages stemming from alleged threats and harassment allegedly directed at her by, or on behalf of Defendant-Landlord Modi Realty and its principal, Defendant Girdhar Modi. Further, any disputes regarding Plaintiff-Tenant' Sambula's tenancy in the Premises-the parking lot at issue-and the application of landlord-tenant law are more properly addressed in the Civil Court.