New York Supreme and/or Appellate Courts Appellate Division, First Department
April 30, 2013
INEZ SIMENS, ETC., ET AL.,
CHARLES DARWISH, ETC., ET AL.,
DEFENDANTS. NEAL FELLENBAUM, ETC.,
SMALLBONE, INC., ETC.,
Simens v Darwish
Decided on April 30, 2013
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Acosta, J.P., Moskowitz, Renwick, Freedman, Clark, JJ.
Order, Supreme Court, New York County (Lawrence K. Marks, J.), entered August 6, 2012, which granted the motion of petitioner Neal Fellenbaum, as Temporary Receiver, to remove the holdover proceeding pending against respondent Smallbone in Civil Court (L & T 57366-12) to Supreme Court, and consolidated that proceeding with an action pending in Supreme Court under Index No. 105097-09, unanimously reversed, on the law and the facts, without costs, and the motion denied.
The Temporary Receiver, having commenced a holdover proceeding against Smallbone, a commercial tenant, in Civil Court, where complete relief can be afforded to him, has shown no basis for removing that proceeding to Supreme Court (see Brecker v 295 Cent. Park W., Inc., 71 AD3d 564 [1st Dept 2010]). Smallbone's counterclaims, based on partial actual and constructive eviction, are within the traditional scope of jurisdiction of Civil Court, which "is the preferred forum for resolving landlord-tenant issues" (44-46 W. 65th Apt. Corp. v Stvan, 3 AD3d 440, 441 [1st Dept 2004]). Thus, the court erred in granting the motion to remove the summary proceeding, which was then scheduled for a traverse hearing and trial. Moreover, the court should not have consolidated the landlord-tenant summary holdover proceeding with an entirely distinct action involving accounting, fraud, and breach of contract claims between property owners (see CPLR 602).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 30, 2013
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