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Scheff v. 230 East 73rd Owners Corp.

Appellate Division of the Supreme Court of New York, First Department
Apr 21, 1994
203 A.D.2d 151 (N.Y. App. Div. 1994)

Opinion

April 21, 1994

Appeal from the Supreme Court, New York County (Robert D. Lippmann, J.).


Included among the numerous claims asserted by plaintiffs-respondents (tenants) in their Supreme Court tort action is a cognizable defense, based upon a breach of the statutory warranty of habitability (Real Property Law § 235-b), to defendant-appellant's summary proceedings for nonpayment of rent pending in Civil Court. 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). Nor do plaintiffs set forth any basis for departure from the rule established in this Department by the foregoing decisions.

Concur — Carro, J.P., Wallach, Ross, Rubin and Williams, JJ.


Summaries of

Scheff v. 230 East 73rd Owners Corp.

Appellate Division of the Supreme Court of New York, First Department
Apr 21, 1994
203 A.D.2d 151 (N.Y. App. Div. 1994)
Case details for

Scheff v. 230 East 73rd Owners Corp.

Case Details

Full title:FELICE SCHEFF, Plaintiff, v. 230 EAST 73RD OWNERS CORP. et al.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 21, 1994

Citations

203 A.D.2d 151 (N.Y. App. Div. 1994)
610 N.Y.S.2d 252

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