Opinion
9571/05.
Decided April 18, 2006.
This is a real estate action for specific performance of a contract of sale for the premises at 819 Dean Street, Brooklyn, New York, and money damages from the various defendants. Plaintiff moves, by order to show cause, to stay the proceedings, pursuant to CPLR § 2201, in a Kings County, Civil Court, Housing Part holdover proceeding, Index No. 105828/04, 819 Dean Street Corp. v. Bertram Stracham, et. al., or in the alternative, pursuant to CPLR § 602 (b), to consolidate the above-named holdover proceeding with the instant action.
This case involves the tortured chain of title with respect to who is the lawful owner of 819 Dean Street and if plaintiff has the right, pursuant to a 1992 contract of sale, to purchase the premises from defendant Almar Roofing Sheet Metal Corp. (Almar).
Undisputed by the parties, and according to the official web site of the Office of the City Register, at "Automated City Register Information System" (ACRIS), Almar acquired the 819 Dean Street property by a deed, recorded on January 21, 1987, and then, subsequently, recorded a contract of sale and a lease with plaintiff on April 30, 1997. According to the exhibits attached to plaintiff's instant order to show cause, these documents were executed in 1992. Further, all parties agree that Mr. Stracham never received a deed to the premises.
Mr. Stracham claims that defendant Bresnick, President of Almar, is ready to execute a deed upon payment of the balance owed to Almar by plaintiff, pursuant to the 1992 contract of sale. Attached to the reply affirmation of counsel for defendants Bresnick and Almar is Mr. Bresnick's affidavit, stating that "I am ready and willing to execute a deed in favor of Bertram Stracham upon his payment of the balance due on the property."
Defendant 819 Dean Street Corporation claims that it is the lawful owner of the premises and that this Court should: deny plaintiff's order to show cause; lift the stay on the Housing Part's holdover proceeding; and, dismiss the instant complaint. However, an examination of the ACRIS printout reveals a chink in the chain of title. According to ACRIS, Almar deeded the property to Aleksandra, Inc., in a deed recorded on October 28, 1997. The next recording of a deed for the premises took place on July 26, 2002, from Chukwuma Osakwe to Angela Headley. This Court, after examining ACRIS, has no idea as to how Ms. Osakwe secured title from Aleksandra, Inc. Subsequently, in 2003, Ms. Headley deeded the property to the 819 Dean Street Corporation. While counsel for defendant corporation presented as exhibits the recorded deed from Ms. Headley to the 819 Dean Street Corporation, no copies of the deeds from Almar to Aleksandra, Inc., or from Aleksandra, Inc. to Mr. Osakwe, or from Mr. Osakwe to Mr. Headley are presented. Further, Mr. Bresnick, in his affidavit, states "I did not execute any deed in favor of any Chukwuma Osakwe or Alexsandra, Inc., as purported in the record of the City Register, or as claimed by Mr. Osakwe."
In my order of November 22, 2005, I denied plaintiff's motion for summary judgment, holding that there are triable issues of fact in the instant action. The chain of title must be determined to resolve who owns the premises. Once title is resolved, the intertwined holdover issue can be adjudicated. None of the defendants has demonstrated any prejudice to their rights if there is either a consolidation of the holdover proceeding with the instant action or a joint trial. In Berman v. Greenwood Village Community Development, Inc., 156 AD2d 326 (2nd Dept 1989), the Court instructed that:
It is well established that the power to order consolidation rests in the sound discretion of the court, and that where common questions of law or fact exist, consolidation is warranted unless the party opposing consolidation demonstrates prejudice to a substantial right ( see Business Council v. Cooney, 102 AD2d 1001; Cushing v. Cushing, 85 AD2d 809; see also, Computer Strategies v. Commodore Business Machs., 105 AD2d 167).See Palmiero v. North Shore University Hosp., 194 AD2d 596 (2nd Dept 1993); Rodgers v. Worrell, 214 AD2d 553 (2nd Dept 1995); Nikolaidis v. Makita Corp., 242 AD2d 322 (2nd Dept 1997); McDutchess Builders, Inc. v. Dutchess Knolls, Inc., 244 AD2d 534 (2nd Dept 1997); Pitney Bowes Credit Corp. v. Biometrics/Seafield Center, 302 AD2d 508 (2nd Dept 2003).
Thus, in my exercise of sound discretion, with the existence of common questions of fact in these cases, it is proper, pursuant to CPLR § 602, to order a joint trial of the instant Supreme Court action with the Housing Part holdover action. This Court will remove the Housing Part action to Supreme Court for joint trial with the instant action. Joint trial, as opposed to consolidation, is the best way to proceed with these related matters. Consolidation would fuse the two actions together, creating jury confusion, in that Mr. Stracham would be both a plaintiff and a respondent and that 819 Dean Street Corporation would be both a defendant and a petitioner. Joint trial offers the same advantages as consolidation, but with less confusion for a jury and also without any need to amend captions. Professor David Siegel, in NY Prac, § 127, at 220 [4th ed], explained pragmatically why a joint trial, and not consolidation, is the preferred way to proceed with the unique facts and circumstances of the 819 Dean Street matters:
If one party would find herself on both sides of the versus sign if the cases were merged, then joint trial is probably preferable to consolidation just to avoid confusing the jury. It should be preferable for other reasons as well. Since joint trial usually secures the same advantages as consolidation without the latter's papers-altering inconvenience, the thoughtful attorney ought to prefer it more often than the older caselaw indicates. The reason that consolidation has been sought more often than mere joint trial may be the bar's unawareness of the difference.
Conclusion
Accordingly, it is
ORDERED, that the order to show cause of plaintiff Bertram Stracham is granted to the extent that the holdover proceeding in Kings County, Civil Court, Housing Part, Index No. 105828/04, 819 Dean Street Corp. v. Bertram Stracham, et. al., is, pursuant to CPLR § 602 (b), removed forthwith to Supreme Court, Kings County, Civil Term, Part 27, to be tried jointly with the instant action, Index No. 9571/05; and it is further
ORDERED, that pending the removal from Kings County, Civil Court, Housing Part, Index No. 105828/04, 819 Dean Street Corp. v. Bertram Stracham, et. al., to this Court, all stays in the Housing Part action shall remain in full force and effect.
This constitutes the Decision and Order of the Court.