Spain v. 325 West 83rd Owners Corp.

302 A.D.2d 587, 755 N.Y.S.2d 303

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 2003
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of a proprietary lease, the plaintiffs appeal from an order of the Supreme Court, Putnam County (Hickman, J.), dated May 14, 2002, which denied their motion for an order pursuant to CPLR 602 removing a summary proceeding entitled 325 W. 83rd Owners Corp. v Spain, pending in the Civil Court, New York County, Housing Part, under Index No. L & T 87768/01, to the Supreme Court, Putnam County, and consolidating it with this action, and granted that branch of the defendant’s cross motion which was to dismiss this action pursuant to CPLR 3211 (a) (4).

Ordered that the order is affirmed, with costs.

CPLR 602 (b) authorizes the Supreme Court to remove an action or proceeding pending in another court for consolidation with the Supreme Court action. However, the Civil Court is the preferred forum for landlord-tenant disputes, and a summary proceeding should be removed only where the Civil Court is unable to afford the parties complete relief (see Post v 120 E. End Ave. Corp., 62 NY2d 19, 28 [1984]; Scheff v 230 E. 73rd Owners Corp., 203 AD2d 151 [1994]; Amoo v Eastlake Realty Co., 133 AD2d 657 [1987]; Lun Far Co. v Aylesbury Assoc., 40 AD2d 794 [1972]). Here, both the Supreme Court action and the summary proceeding essentially arise from a dispute over whether the plaintiffs violated their proprietary lease by failing to obtain approval to sublease their apartment in June 2000. Since the plaintiffs may obtain full redress of their rights under the proprietary lease by raising the claims asserted in this action as affirmative defenses and counterclaims in the summary proceeding, the Supreme Court properly denied their motion for removal and consolidation, and granted that branch of the cross motion which was to dismiss the action pursuant to CPLR 3211 (a) (4) (see Post v 120 E. End Ave. Assoc., supra; Cohen v Goldfein, 100 AD2d 795, 796-797 [1984]). Santucci, J.P., Krausman, Adams and Crane, JJ., concur.