Brecker v 295 Cent. Park W., Inc.

Brecker v 295 Cent. Park W., Inc. 2010 NY Slip Op 02470 [71 AD3d 564] March 25, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

Mark Lewis Brecker, Respondent,
v
295 Central Park West, Inc., et al., Appellants.

—[*1] Mitofsky Shapiro Neville & Hazen, LLP, New York (M. David Fonseca of counsel), for appellants. Mark Lewis Brecker, New York, respondent pro se.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered February 5, 2009, which, to the extent appealed from, conditioned dismissal of this action on the parties being afforded full discovery in a pending Civil Court proceeding, and order, same court and Justice, entered September 16, 2009, which granted plaintiff's motion to reargue and restore this action to the calendar, unanimously reversed, on the law, without costs, plaintiff's motion denied, and the action dismissed unconditionally. The Clerk is directed to enter judgment accordingly.

When no other action or proceeding is pending in Civil Court, a tenant may commence an action in Supreme Court seeking a declaration of succession rights to a rent-regulated apartment and related injunctive relief (see Shadick v 430 Realty Co., 250 AD2d 417 [1998]). However, Civil Court is the strongly preferred forum for resolving such landlord-tenant disputes (44-46 W. 65th Apt. Corp. v Stvan, 3 AD3d 440 [2004]). Once a summary proceeding has been commenced in Civil Court where complete relief can be afforded to the tenant, there is no further basis for invoking the equitable jurisdiction of Supreme Court (see Post v 120 E. End Ave. Corp., 62 NY2d 19, 28 [1984]; Cox v J.D. Realty Assoc., 217 AD2d 179 [1995]). Absent a showing of special circumstances or novel issues requiring Supreme Court involvement, the court should not have conditioned dismissal on full discovery in Civil Court, and should simply have dismissed the equitable action under CPLR 3211 (a) (4) (see 44-46 W. 65th Apt. Corp., 3 AD3d 440 [2004], supra; Cox, 217 AD2d 179 [1995], supra). Discovery issues can be addressed by Civil Court using the procedures available in a summary proceeding pursuant to the Real Property Actions and [*2]Proceedings Law (see id. at 183-184). Plaintiff's request that this Court review outstanding discovery matters is beyond the scope of the appeals. Concur—Gonzalez, P.J., Moskowitz, Freedman, Richter and RomÁn, JJ.