Civil Court of the City of New York, Richmond County
Attorney for Plaintiff Gutman, Mintz, Baker & Sonnenfeldt
S. Straniere, J.
ain't over till it's over." Yogi Berra
Kings & Queens Holdings LLC, commenced this civil action
against the defendant, Jeanette Ahmad, alleging that the
defendant owed rent for an apartment known as 2862 Hylan
Boulevard, Apt A-86, Staten Island, New York. The obligation
allegedly was incurred before the defendant vacated the
premises. A trial was held on March 21, 2017. Plaintiff was
represented by counsel. Defendant was unrepresented.
action is typical of a class of litigation becoming more
prevalent in Civil Court which has been labeled by some as
"rental arrearage" actions. Typically, they involve
actions commenced in a situation where the tenant has vacated
the premises either before or after a summary proceeding was
commenced in the housing part and an issue concerning unpaid
rent or use and occupancy remains unresolved. This is an area
of litigation distinct from the more common small claims
action of tenants seeking the return of security deposits and
landlords counterclaiming for damages which often arise
following the housing part leaving these issues unresolved.
defendant was a tenant at the premises known as Apt A-86, 471
Falcon Avenue, Staten Island, New York pursuant to a written
standard form rent stabilization lease. The apartment complex
is known as Carolina Gardens. The lease was dated September
5, 2002 and indicated the term was to begin October 1, 2002
and expire September 30, 2004. Presumably, the lease term was
extended over the years by written agreements. Another
renewal lease was sent to the defendant on June 24, 2013
offering to extend the occupancy for either a one-year term
(September 30, 2014) or a two-year term (September 30, 2015).
It is agreed that the tenant refused to sign the renewal
lease and remained in possession as a month-to-month tenant
until she vacated the premises on September 30, 2014. This
civil litigation alleges non-payment of rent for the period
July 1, 2014 to September 30, 2014.
should be noted that in this civil action, plaintiff alleges
that the address of the premises is 2862 Hylan Boulevard,
Staten Island, New York, Apt. A-86. In the summary proceeding
the landlord brought in September 2014 it alleged the address
as 471 Falcon Avenue. Plaintiff contends that the premises
has both addresses.
landlord on the initial written lease is Carolina Gardens
Limited Liability Company. The petitioner in the summary
proceeding and the plaintiff in this action is Kings &
Queens Holdings, LLC. In order to resolve the question of the
standing of the plaintiff to bring these actions, the court
permitted the plaintiff to produce as a post-trial submission
the deed from Carolina Gardens Limited Liability Company to
plaintiff dated August 10, 2007. The property description in
the deed covers three parcels with separate block and lot
Summary Proceeding (L & T No.52903/14):
September 3, 2014, plaintiff, as petitioner-landlord,
commenced a summary proceeding alleging that the defendant,
as respondent-tenant, failed to pay rent as agreed for the
period June, July & August 2014. Respondent filed an
answer on October 2, 2014 alleging that the monthly rent
being charged is not the legal rent under the terms of the
current lease and the June rent was partially paid. She also
alleged that she moved in September 2014. The premises was
described as 471 Falcon Avenue. Apt. A-86. The tenant did not
raise as a defense conditions in the apartment.
October 8, 2014, the parties signed a stipulation reciting
that the "proceeding discontinued. Tenant moved."
There is no mention in the stipulation as to whether the
claim for rent was resolved or survived. Neither party
preserved the right to bring a plenary proceeding in regard
to any issues existing between them. It is silent as to
whether the discontinuance is with or without prejudice.
spite of entering into a voluntary discontinuance of the
proceeding on October 8, 2014, in which it acknowledged
surrender of the apartment, the landlord submitted papers
seeking to have a warrant of eviction issued. Fortunately,
the clerk discovered the discontinuance and rejected the
inconsistent request. No warrant was issued. The legal status
of this summary proceeding is discussed below.
the Premises Properly Described?
noted above, the premises sought to be recovered in the
summary proceeding was described by the plaintiff as 471
Falcon Avenue, Apt. A-86 while in this civil action it is
listed as 2862 Hylan Boulevard Apt. A-86. When questioned at
trial, plaintiff asserted that the addresses are
interchangeable and describe the same premises. A search of
buildings department records contradicts that assertion.
Department of Buildings search discloses that 471 Falcon
Avenue, is one of twenty-one units listed as being located on
Block 4000 Lot 39. The certificate of occupancy search for
that address shows 471 Falcon Avenue as being one of nine
addresses and eighteen dwelling units covered by the
certificate of occupancy. Regarding 2862 Hylan Boulevard, it
is listed as one of forty-four units on Block 4001 Lot 1. The
certificate of occupancy discloses 2862 Hylan Boulevard as
being one of ten addresses and twenty dwelling units covered
by the certificate of occupancy.
they are not the same legal premises. If this were an action
to recover possession of the premises, it would be defective.
However, this is an action for unpaid rent only as the
defendant has vacated the premises and it is conceded that
she occupied Apt. A-86 irrespective of the street address.
Because the address of the premises is not a material issue
in the litigation. The court determines that this is a de
minimis error capable of being remedied.
Does the Existence of the Prior Summary Proceeding Preclude
the Civil Action?
previously commenced the above referenced summary proceeding
for non-payment of rent. It was discontinued by a stipulation
dated October 8, 2014, the return date of the proceeding. The
stipulation is not "so ordered" by the court. The
procedure to discontinue an action or proceeding is set forth
in Civil Practice Law & Rules (CPLR) §3217. There is
no equivalent rule in the Real Property Actions &
Proceedings Law (RPAPL). CPLR §3217 provides:
(a) Without an order. Any party asserting a claim may
discontinue it without an order
1. By serving upon all parties to the action a notice of
discontinuance at any time before a responsive pleading is
served, or if no responsive pleading is required, within
twenty days after service of the pleading asserting the claim
and filing the notice with proof of service with the clerk of
the court; or
2. By filing with the clerk of the court before the case has
been submitted to the court or jury a stipulation in writing
signed by the attorneys of record for all parties, provided
no party is an infant, incompetent person for whom a
committee has been appointed or conservatee and no person not
a party has an interest in the subject matter of the action;
(b) By order of the court. Except as provided in subdivision
(a), an action shall not be discontinued by a party asserting
a claim except upon order of the court and upon terms and
conditions, as the court deems proper. After the cause has
been submitted to the court or jury to determine the facts
the court may not order an action discontinued except upon
the stipulation of all parties appearing in the action.
(c) Effect of discontinuance. Unless otherwise stated in the
notice, stipulation or order of discontinuance, the
discontinuance is without prejudice, except that a
discontinuance by means of notice operates as an adjudication
on the merits if the party has once before discontinued by
any method an action based on or including the same cause of
action in a court of any state or the United States.
review of the facts of the summary proceeding is needed to
determine if that litigation was properly discontinued.
October 2, 2014, the tenant filed an answer which meant the
action would proceed as a contested matter and gave it a
court appearance date of October 8, 2014. Because an answer
was filed, the discontinuance could not be by notice only as
permitted by CPLR §3217(a)(1). If the language of the
statute is taken as written, a discontinuance by stipulation
[CPLR §3217(a)(2)] is also unavailable because it says
the stipulation is to be "signed by the attorneys of
record." The statute would seem to prohibit a
stipulation of discontinuance being submitted in litigation
where both parties are unrepresented or as exists here, where
the landlord is represented and the tenant is not.
leaves as the only procedure to discontinue the summary
proceeding was by "order of the court." This makes
sense in that having the court order the stipulation would
mean that the judge has allocated the document. Such a
process is the minimum that should be required when
unrepresented persons are one or both of the parties. It
reduces the likelihood of a misunderstanding of the terms of
the agreement as well as the possibility of the forfeiting of
an unrepresented litigant's rights, especially if one
side is represented.
court record discloses that the stipulation is not "so
ordered." Nor is there any indication that the
stipulation was allocated. It means that this court would
have to conclude what was the legal effect of the
discontinuance was never discussed with the unrepresented
tenant. In effect, the housing part has created the
equivalent of "Ground Hog Day" for the litigants.
above being the case, what is the status of the summary
proceeding and this civil action? It appears that the summary
proceeding was not properly discontinued. So, if the summary
proceeding still is a viable action, does it have to be
dismissed as an "abandoned case" pursuant to CPLR
§3404? First, the language of CPLR §3404 only
applies to cases in "supreme or county court."
Civil Court is not mentioned. This court has in the past
concluded that this is just another statute that the
legislature never got around to fix when the county court was
abolished in 1962 in New York City to be ...