Sims v. Manley

120 A.D.2d 405, 502 N.Y.S.2d 194, 1986 N.Y. App. Div. LEXIS 56501

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1986
• Status: Published

Opinions

— Order, Surrogate’s Court, New York County (Marie M. Lambert, S.), entered January 22, 1985, granting petitioner’s motion to transfer two summary proceedings pending in the Civil Court, New York County, to the Surrogate’s Court and to consolidate said proceedings with a proceeding for the discovery of assets pending in the Surrogate’s Court, reversed, on the law and on the facts and in the exercise of discretion, without costs or disbursements, the motion denied and the two summary proceedings returned to the Civil Court.

One of the two Civil Court proceedings at issue, a nonpayment proceeding, was commenced on or about August 9, 1984 by the trustee of the estate of Samuel A. Gadsby, who died in 1970 owning various pieces of residential property in Harlem. The estate has continued as landlord of these properties ever since. The petition alleged a failure to pay rent in the sum of $200 per month since March 1983. The tenant interposed a general denial and also asserted, inter alia, the defense of breach of warranty of habitability. A Housing Court Judge ruled preliminarily that he would not consider claims for rent prior to April 1984 because of the estate’s failure to register the premises with the Rent Stabilization Association. After the estate expressed dissatisfaction with the ruling and a desire to transfer the matter to the Surrogate’s Court, where a proceeding for the discovery of assets was pending, the proceeding was marked "off-calendar”, on consent, pending a determination by the Surrogate’s Court as to whether it would grant the estate’s application for transfer.

In the other matter a tenant commenced a "Housing Part” proceeding, pursuant to Rules of the Civil Court of the City of New York § 2900.35 (22 NYCRR), against the estate to correct certain violations. When the estate defaulted on the return date, the Housing Court Judge issued an order requiring the removal of the class A and B building code violations within 30 days. The estate’s motion to vacate its default was granted on condition that, within 60 days, it commence a nonpayment proceeding, in which the tenant could assert as a defense the landlord’s breach of the warranty of habitability and request an appropriate rent abatement. The estate never commenced such a proceeding. Instead, it sought to transfer this and another "Housing Part” proceeding, as well as three nonpayment proceedings, including the matter already noted, to the Surrogate’s Court under the guise of necessity in order to preserve the assets of the estate and to manage its administration. The Surrogate granted the motions and ordered the transfer of the summary proceedings. We reverse with respect to the two matters appealed and remand them to the Civil Court.

"[T]he history of the Surrogate’s Court during the twentieth century is one of steadily expanding jurisdiction [citations omitted].” (Matter of Piccione, 57 NY2d 278, 287.) While there is no question that the transferred proceedings are cognizable in the Surrogate’s Court (NY Const, art VI, § 12; SCPA 201, 202), we reject the notion that the Court of Appeals intended that the Surrogate’s Court assume jurisdiction in every landlord-tenant case involving an estate, no matter how tenuous the connection. Thus, we believe that it was an improvident exercise of discretion to transfer the two garden-variety summary proceedings at issue to that court. As the estate made eminently clear in its moving papers, its primary motivation in seeking transfer of the nonpayment proceeding was to avoid the registration rule contained in Rules of the Civil Court of the City of New York § 2900.21 (e) (2). Rather than proceed in the Civil Court, the estate sought transfer in the hope of obtaining a more favorable result. This is not an appropriate consideration in determining whether a case should be transferred from one forum to another. Finally, we believe that the Housing Court is the more appropriate forum for resolution of the "Housing Part” proceeding. Concur— Sandler, J. P., Sullivan and Rosenberger, JJ.