Potocnik v Citibank, N.A.

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Potocnik v Citibank, N.A. 2006 NY Slip Op 30663(U) April 19, 2006 Sup Ct, NY County Docket Number: 106409/05 Judge: Debra A. James Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: DEBRA A. JAME$ PART 59 Justice Index No.: Plaintiff, -w- 106409/05 Motion Date: GERDA POTOCNIK, 11/30/05 Motlon Seq. No.: CITIBANK, N.A., TRACY TENANTS CORPORATION, and MIRIAM WEISBECKER, Motion Cal. No.: Defendants. 01 The following papers, numbered 1 to 4 were read on this motion to consolidate. I PAPFRS NUMBERED Notice of MotionlOrder to Show Cause -Affidavits -Ex Answering Affidavits - Exhibits Replying Affidavits - Exhibits Cross-Motlon: o x - - No-- Upon the foregoing papers, The court shall GRANT plaintiff s motion to remove the summary proceeding from the Civil Court of the City of New Y o r k and to consolidate such proceeding w i t h the action at bar. Plaintiff seeks by Order to Show Cause to s t a y an eviction proceeding pending in the Housing Part of Civil Court, New York County under Index No.: 6 5 2 9 7 / 2 0 0 5 , and consolidate t h a t proceeding with the herein plenary action. The court granted a temporary restraining order staying that proceeding pending resolution of this motion and has adjourned this motion to allow the parties to engage in settlement discussions. 0 FINAL DISPOSITION Check If appropriate: 0 DO NOT POST Check One: As those NON-FINAL DISPOSITION 0 REFERENCE. - - - - [* 2] discussions having not borne fruit, the court shall proceed to decide this motion. For twelve years, plaintiff was the rent-stabilized tenant of the apartment that is the subject of this action. In 1987, plaintiff became the owner of the cooperative apartment, following her purchase of shares allocated to that apartment in a conversion. Defendants allege that plaintiff defaulted on her maintenance payments to the corporation and loan payments to the bank. Eventually, the plaintiff's shares and lease were sold at auction to defendant Miriam Weisbecker and the sale was closed on January 28, 2005. .- . p e . - Purchaser Weisbecker then initiated the t i ne-&resident i a Q B T Qc W g - 3L C I Y L L C Q uL L .. P l a i n t i f f argues that she never received notice from the defendants of the foreclosure or of any sale of h e r apartment. She s t a t e s that due to such lack of notice, coupled with her responsibilities as caretaker of an invalid parent and her own numerous health problems that among other issues affected plaintiff's vision, she has been deprived of the opportunity to challenge the sale. Plaintiff commenced this action to void the sale on the grounds of lack of notice and that the sale was not commercially reasonable. She now moves to stay the Civil Court summary proceeding, and to remove and consolidate it with the herein action. -2- -- - [* 3] "Only where Civil C o u r t is without authority to grant the relief sought should the prosecution of a summary proceeding be stayed." I Scheff v 230 East 73rd Owners Corp., 203 AD2d 151, 152 (lat Dept 1994). The question of whether plaintiff received notice of the foreclosure cannot be summarily resolved against the tenant in the holdover proceeding, b r o u g h t by the new purchaser against her. Zuk v Loy, 2002 NY Slip Op 50022(U), 2002 WL 126256 (App Term, l J tDept 2002). Nor does the Civil Court have authority to resolve the question of whether the c o o p e r a t i v e corporation has the right to divest plaintiff of h e r ownership in the apartment without any judicial determination of equitable v P Z k Towers Owner3 def-enses-anLcwntercla-.. Corporation , 225 AD2d 742 (2d Dept 1996). On that basis, the issuance of a stay of the Civil Court proceeding was warranted. Furthermore, the Civil Court action ought to be removed and consolidated with the instant action, as both cases share common questions of law and f a c t . Mor re11 & Companv v Richalan Rea l t v Gorp, (93 AD 2d 736, 737 [la'Dept 19831) is illustrative. There, plaintiff tenant commenced a p l e n a r y action for a declaratory judgment and specific performance, asserting that it had properly exercised a right of first refusal to purchase the building under a lease. In reversing the trial court's denial of a motion to consolidate that action with a summary holdover proceeding, the appellate court reasoned that an ultimate finding -3- , -- [* 4] in the plenary action that tenant was entitled to purchase the building would render the eviction proceeding academic. So t o o , here, the question whether plaintiff has been divested of her shares upon proper notice would resolve defendant Weisbecker's proceeding for possession. above, the declaration of the p a r t i e s ' In addition, as stated rights under t h e proprietary lease pursuant to the Uniform Commercial Code article 9 is only available in Supreme C o u r t . "Therefore, removal and consolidation will permit the resolution of a l l issues in one forum." See Morrell, Supra, a t 7 3 7 . In that regard, the facts b e f o r e this court are . - . -. . . .. -.dstinguishahlc fram. t h a s -m v. ( 3 AD3d 440, landlord's 441-442 [ l BDept 2 0 0 4 1 ) . t In S t v a n , plenary action for breach of contract and f r a u d against the tenants was totally distinct from the landlord's holdover proceeding for possession against those tenants, which he subsequently brought in the Civil Court, the "proper forum for resolving landlord-tenant issues.'' Finally, the mere fact that holdover proceeding will be delayed by the consolidation is n o t sufficient to bar such relief. Amtors Tradinq Cor p . v Broadwav 191 A D 2 d 2 1 2 (1st Dept 1993). Accordingly, it is -4- & 56th Street A s s ~ c. I; ~ [* 5] ORDERED that the motion is GRANTED and the above-captioned action is consolidated in this Court with the summary proceeding entitled Weishec kes v P o t o c n i k , 65297/2005) (Civ Ct, NY County, Index No.: under New Y o r k County Index No.: 106409/2005, and shall bear the caption GERDA POTOCNIK, Plaintiff, - v - Index No. : 1q6409,2 0 0 4 CITIBANK, N.A.; TRACY TENANTS CORPORATION and MIRIAM WEISBECKER, Defendants. and it is further ___._.. - ORDERED that the C l e r k of the Civil Court of the City of New York, N e w York County, shall transfer the papers on file under ', Index No.: 6 5 2 9 7 / 2 0 0 5 , to the Clerk of Supreme Court, New York - County, upon service of a certified copy of this order and payment of the appropriate fee, if any; and it is further ORDERED that the pleadings in the actions hereby consolidated shall stand as the pleadings in the consolidated action for and against the respective parties; and it is further ORDERED that upon service on the C l e r k of this Court of a copy of this order with notice of entry, t h e Clerk shall consolidate the p a p e r s in the actions hereby consolidated and shall mark the records to reflect the consolidation; and it is further -5- [* 6] ORDERED t h a t a copy of t h i s o r d e r with notice of entry shall a l s o be s e r v e d upon t h e C l e r k of t h e Trial Support O f f i c e (Room 158, 60 Centre Street), who i s h e r e b y d i r e c t e d t o m a r k the court s records to reflect the consolidation. ORDERED that the parties are directed to attend a preliminary conference on June 6, 2006, at 9 : 3 0 A . M . , at the Courthouse, I A S Part 5 9 , R o o m 1 2 5 4 , 111 C e n t r e S t r e e t , New York, N e w York. This i s the decision and order of the court. Dated: A p r i l 19, 2006 ENTER: -6-

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