Moore v. Chase Manhattan Bank, N. A.

217 A.D.2d 419, 629 N.Y.S.2d 41

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 1995
• Status: Published

Opinion

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered October 5, 1994, which, inter alia, granted plaintiff’s motion, and removed and consolidated the summary proceeding entitled Chase Manhattan Bank v Moore (Civ Ct index No. L&T 63958/94), with the action in Supreme Court, unanimously affirmed, with costs.

The tenant’s claims for damages as a result of the landlord’s breach of the lease in excess of the unpaid rent claimed as the basis for the landlord’s election to terminate the lease, may provide an equitable defense to the holdover proceeding (see, Linden Blvd. v Elota Realty Co., 196 AD2d 808, 811, lv denied 82 NY2d 658). There are also common issues of fact as to landlord’s alleged unconscionable conduct, which may bar landlord’s utilization of termination of lease provisions enabling it to convert a nonpayment case to a holdover proceeding (see, Grand Liberte Coop, v Bilhaud, 126 Misc 2d 961). Thus, the Civil Court action was properly removed and consolidated with the Supreme Court action in light of the common issues of law and fact (see, Phoenix Garden Rest. v Chu, 202 AD2d 180; DeCastro v Bhokari, 201 AD2d 382; Amtorg Trading Corp. v Broadway & 56th St. Assocs., 191 AD2d 212). Concur—Sullivan, J. P., Rosenberger, Ross, Asch and Tom, JJ.