Moretti v. 860 West Tower, Inc.

221 A.D.2d 191, 633 N.Y.S.2d 163, 1995 N.Y. App. Div. LEXIS 11552

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1995
• Status: Published

Opinion

—Order, Supreme Court, New York County (William Davis, J.), entered April 20, 1995, which granted plaintiff’s motion for removal of a summary nonpayment proceeding from Civil Court and consolidated it with the Supreme Court action, unanimously affirmed, with costs.

The IAS Court was within its discretion in granting removal and consolidation, in the interest of judicial economy, as both cases involved common questions of law and fact and plaintiff would otherwise be unable to obtain full redress of her rights. Neither plaintiff’s negligence claims nor her request for injunctive relief could be adjudicated in the nonpayment proceeding (see, Atherton v 21 E. 92nd St. Corp., 149 AD2d 354). The delay in determination of the nonpayment proceeding will not cause prejudice sufficient to justify denial of the motion (see, Amtorg Trading Corp. v Broadway & 56th St. Assocs., 191 AD2d 212), as the parties’ real controversy concerns money, not possession of the premises, and as interest may be awarded if defendant prevails (CPLR 5001). Concur—Sullivan, J. P., Ellerin, Wallach, Asch and Tom, JJ.