Appeal (1) from an order of the Supreme Court at Special Term, entered September 8, 1954, in Bronx County, which granted a motion by plaintiffs for summary judgment under rule 113 of the Rules of Civil Practice, and (2) from the judgment entered thereon.
The order and judgment granting the plaintiffs-landlords summary judgment should be reversed and the motion should be denied, nor do we think that defendant is entitled to summary judgment. There are sharp issues which should not be decided except at a plenary trial.
As to the first two causes of action, respectively, for rent and use and occupation of the premises, the effect of the judgment of the Municipal Court, Bronx, for rent obtained by the landlords against the tenant in May, 1953, and that of the judgment later obtained by the tenant against the landlords in the same court in July, 1953, can only be determined upon a full inquiry into the issues which were tried out in each case and those issues which might have been litigated. 'A judgment in one action is conclusive in a later one not only as to any matters actually litigated therein, but also as to any that might have been so litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first.'
(Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N.Y. 304, 306-307.) The later determination by the Municipal Court made on July 10, 1953, held that the landlords were not entitled
to dispossess the tenant for nonpayment of rent for the month of June, 1953, because the landlords failed to possess a certificate of occupancy. Even though such certificate was not required in a class A heretofore converted multiple dwelling, this holding might be binding between the same parties as to any future litigation for rent for that month, although such issue might well have been litigated between these same parties at the first trial held in May of 1953. Whether the tenant in the circumstances was entitled to remain in full occupancy of the premises without paying rent there for for a period of at least four months after June, 1953, should only be determined upon a full adducement of all the facts.
As to the third cause of action, landlords claim that their ownership of the furniture and fixtures was fully litigated at the first trial in the Municipal Court and decided in their favor. In the absence of documentary or other proof as to the issues there decided, summary judgment in favor of landlords as to this cause of action should likewise have been denied.
BASTOW, J. (dissenting in part).
Defendant appeals from an order granting plaintiffs' motion for summary judgment. The complaint sets forth three causes of action. The first two causes seek to recover alleged unpaid rent for the months of June, 1953, to October, 1953, inclusive, at the rate of $100 per month. The answer, among other defenses, alleges that during the stated period the leased premises were not a legal dwelling because no certificate of occupancy had been issued for the dwelling.
It is further alleged that on July 10, 1953, a final order was entered in Municipal Court in favor of the defendant in an action brought by the plaintiffs to recover rent for the month of June, 1953. Documentary evidence was submitted proving that such order was made on the merits following a trial. A finding was made in that order that the occupancy was without certificate of occupancy and contrary to law. (Multiple Dwelling Law, § 302.) The petition was dismissed on the merits and plaintiffs did not appeal.
The judgment of the Municipal Court is res judicata
with respect to so much of plaintiffs' first and second causes of action
based upon the June, 1953, rent. Both the parties and the cause of action were the same in that action as they are here. The Municipal Court judgment of July 10, 1953, is res judicata not only with respect to issues which were litigated but also with respect to issues which might have been litigated. Therefore, plaintiffs are now precluded from showing that for the month of June, 1953, the premises were covered by a certificate of compliance, issued by the department of housing and buildings, satisfying the requirements of the Multiple Dwelling Law.
Plaintiffs are also estopped from raising questions of fact actually litigated and determined in the prior action with respect to that part of the first and second causes of action based upon the rent accrued from July through October, 1953. (Schuylkill
Fuel Corp. v. Nieberg Realty Corp., 250 N.Y. 304, 307.) Plaintiffs, in this action, now attempt to show that no certificate of occupancy was needed in a class A heretofore converted multiple dwelling. However, that question was actually litigated in the prior action. The Municipal Court, in determining that there was no certificate of occupancy, must have necessarily determined that such a certificate of occupancy was a prerequisite if the landlord were to recover the June, 1953, rent.
It would appear from the record that the landlord successfully brought an earlier action in May, 1953, to recover accrued rent for the months of March, April and May, 1953. The ...