Mordini Estates, Inc. v Punto Zero, Inc.

[*1] Mordini Estates, Inc. v Punto Zero, Inc. 2014 NY Slip Op 51661(U) Decided on November 6, 2014 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., SOLOMON and ELLIOT, JJ.
2013-525 Q C

Mordini Estates, Inc., Appellant,

against

Punto Zero, Inc. ROMANTICOS PUNTO ZERO, INC. Doing Business as ROMANTICOS, Respondent, -and- "JOHN DOE" and "JANE DOE," Undertenants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered February 8, 2013. The order granted the branch of tenant's motion seeking to dismiss the petition pursuant to CPLR 3211 (a) (4) and denied as moot landlord's cross motion for, among other things, summary judgment, in a holdover summary proceeding.

ORDERED that the order is reversed, without costs, the branch of tenant's motion seeking to dismiss the petition pursuant to CPLR 3211 (a) (4) is denied, the provision denying as moot landlord's cross motion for, among other things, summary judgment is stricken, and the matter is remitted to the Civil Court for a determination of the remainder of tenant's motion, and of landlord's cross motion.

In this commercial holdover proceeding, landlord appeals from an order of the Civil Court which granted the branch of tenant's motion seeking to dismiss the petition pursuant to CPLR 3211 (a) (4) and denied as moot landlord's cross motion for, among other things, summary judgment.

In support of the branch of tenant's motion seeking to dismiss the petition pursuant to CPLR 3211 (a) (4), tenant failed to demonstrate that the relief sought in tenant's pending declaratory judgment action was the same or substantially the same as that sought by landlord in this holdover proceeding to recover possession. " Dismissal on the ground of prior proceeding pending is not appropriate where substantially the same relief is not being sought in the two proceedings' " (St. Catherine of Sienna Roman Catholic Church, at St. Albans, Queens County v 118 Convent Assoc., LLC, 44 Misc 3d 8, 11 [App Term, 2d, 11th & 13th Jud Dists 2014], quoting 287 Realty Corp. v Livathinos, 38 Misc 3d 146[A], 2013 NY Slip Op 50308[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see Goldman v A & E Club Props., LLC, 89 AD3d 681 [*2][2011]; Wharry v Lindenhurst Union Free School Dist., 65 AD3d 1035 [2009]).

Accordingly, the order is reversed, the branch of tenant's motion seeking to dismiss the petition pursuant to CPLR 3211 (a) (4) is denied, the provision denying as moot landlord's cross motion for, among other things, summary judgment is stricken, and the matter is remitted to the Civil Court for a determination of the remainder of tenant's motion, and of landlord's cross motion.

Weston, J.P., Solomon and Elliot, JJ., concur.

Decision Date: November 06, 2014