Shah v Van Courtland Vil. LLC

[*1] Shah v Van Courtland Vil. LLC 2010 NY Slip Op 51932(U) [29 Misc 3d 133(A)] Decided on November 12, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 12, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
.

Harish Shah, Plaintiff-Appellant,570751/09

against

Van Courtland Village LLC, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered August 4, 2009, which, sua sponte, dismissed the complaint without prejudice to plaintiff's right to commence an action in Housing Court.

Per Curiam.

Order (Ben R. Barbato, J.), entered August 4, 2009, reversed, without costs, complaint reinstated, and matter remanded to Civil Court for further proceedings.

Although the order on appeal is not appealable as of right since it was entered by the court sua sponte, we deem the notice of appeal to be an application for leave to appeal, and grant such leave (see Milton v 305/72 Owners Corp., 19 AD3d 133 [2005], lv denied 7 NY3d 778 [2006]).

Civil Court erred in dismissing the complaint and relegating plaintiff, a tenant in a building owned by defendant, to a housing code enforcement action in Housing Court. Plaintiff's complaint, even if inartfully drafted, states a cause of action against defendant for breach of the warranty of habitability (see Real Property Law § 235-b). Notwithstanding any remedies he may pursue in Housing Court, plaintiff has the right to maintain a plenary action for the breach of the warranty of habitability (see Park W. Mgt. Corp. v Mitchell, 47 NY2d 316 [1979]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 12, 2010