Pereira v Cooper Sq. Mut. Hous. Assn. II, HDFC

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Pereira v Cooper Sq. Mut. Hous. Assn. II, HDFC 2012 NY Slip Op 32355(U) September 6, 2012 Supreme Court, New York County Docket Number: 106020/11 Judge: Paul Wooten 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: PART HON. PAUL WOQTEN 7 Justice 1 * ROBERT PEREIRA, Plaintiff, i * ~ ,, 106020/1 I INDEX NO. MOTION SEQ. NO. 002 \ -v- COOPER SQUARE MUTUAL HOUSING ASSOCIATION I I , HDFC, JOHN DOE andlor JANE DOE, Defendants. The following papers, numbered 1 to 4, were read on this motion by defendant for summary judg,ment. PAPERS NUMBERGD Notlce of Motlonl Order to > - - y Affidhvits 7v 1 Answering Affidavits - Exhibits (wema) 9 b, 1 - II * T 7 - Exhibit$ .,. - rrrr 7 Q- T, 1 r Replying Affidavits (Reply Memo) Cross-Motion: CdYes No I 3 Robert Pereira (plaintiff) &in$$ n%%reach oicontract against Coqper $quare I I 1 Housing Association I I H W d 1 Relocation Agreem drdStreet, New York, New Yo a one bedroom apartme rehabilitated, and plaintiff wad re,lQr;ated tP apartr nent 18 lqcateij at 60 (Qrselli Affidavit, 7 3). [* 2] stipulation, the parties agreed that Cooper Square would abide by the terms of the temporary relocation agreement, and upon the conclusion of the renovations at 89 plaintiff would be given notice that he may relocate back to 89 (Affirmation in Support, 7 I O ) On December 3, 2003, Cooper Square executed the temporary relocation agreement, which states in pertinent part: "Upon the completion of the work in my permanent building, I am entitled to move back and agree to do so. If I fail to vacate the temporary apartment and move back intg my permanent apartment within t days of reFeivin,gnatice that it is ready for occupancy, I understand that I will forfeit ight to the permanent apartment, I understand that failure to comply shall be deerhed to be a violation of the substantial obligation of my tenancy in the permanent agreement, and upon 30 day written notice, the Cooper Agreement, exhibit 6). ~ . ~ n a c c e p t ~ b l e ~ ' . ~ A f ind a v i t f i Opk Cooper Sqclare commenced [* 3] Hon. Sheldon Halprin of the Civil Court, New York County, Upon the plaintiff s failure to appear at trial, a Decision and Order was entered in which the Civil Court awarded Cooper Square a final judgment of possession. Specifically, Judge Halprip held that [Iln view of respandents absence and failure to present a defense to the proceedings, and petitioner having established it s prima facie case; petitioner is awarded a final judgment of possession (Decision and Order, exhibit F). Plaintiff submitted to the Civil Court p v e r a l Orders to Show Cause seeking $7 br-- reconsideration or stays, all of which were denied (Affirmation in Support, 7 18). Further, Judge Halprin denied plaintiff s motion to vacate the default judgment pursuant to CPLR 5015, stating that the Court does not accept respondent s daim of an excusable default (Decision and 1 Order, exhibit I) Plaintiff commerlced the p t directing Cooper Squar e to 1 restpre plaintiff to the premises at 89 afid fQr a stay of hi$,eviqtion fr o m 60 while this action proceeds (Affirmation in SUPPOI-(, 29). itlg specific performgnce of possession and tenancy lr s.,.{acsomrhodatic)ns> s until second causd of action plaintiff seeks are f r m eviGting plaihti plaintiff is allowed to rgfurq to Hi In support of it3 affidavit of Valerio Orselli (Orselli Affidav agreement, the temporary reloca qf New York, Couqty of of law as there are no is fair bppoitueity to adjudi 1 t [* 4] 89 when he made the issue material to the Civil Court summary holdover proceedings. In the summary proceeding before Judge Halprin, plaintiff filed an answer and asserted as his fourth and fifth affirmative defenses to defendant's claim to possession that he had a right to return to his permanent residence at 89 and as a result he could not be evicted from his temporary residence at 60 until such right was upheld. Cooper Square further contends that plaintiff's second cause of action for a preliminary ilnd permqnent injunction is moqt, due to the fact that this Court denied plaintiffs request for a temporary restraining order to prevent his eviction from 60 and the consolidation of this case with the summary proceeding in Civil Court (Affirmation in Support, ql23-24) Plaintiff was evicted fronl apartm - - 7 ' 7 ~ i - e 13, 291 1 (id at 22). InTopposition to CoopwSquarelS motidm forqd@iwary3judgmernlt:~ pjaintift subrnit3,1T-ivter i alia, his affidavit (Pereira Affidavit), and an affirrrratiori 4 qaintains that Cooper Sqll factual issues in dispute. Further, plaintiff 64qt I ' apartment B at 89 has not been deter "T I for plaintiff's permanent apartment at 89 qhd anothlir for' hi$ relQqation apAftment at 60. ceeding for apartment B at 89, because 89 and 60 Therefore, plaintiff'maintainq thd intiff's reloo8tion apartment exclu indl decision re , and plaintiff is n any permanent cl;lim against the relocation apaytmeni i t 60. Further, i n t e the Subject matter /J this action is apartment B gt 89, the subject matter is not the same and res judicata Canpot be AdditibriB'lly, plaintiff arg ~~- . ~ " [* 5] I , ' . , , Complaint, is specific performance of the temporary relQcation qgreement. Plaintiff rnaintaivs that specific performance could not have been raised or litigated in 8 summary proceeding in the Housing Court, as it is beyond the jurisdiction of the Civil Coyrt in a summary proceeding. As ir result, plaintiff asserts that his first cause of action is not barred by res judicata, and although this Court has denied a preliminary injunction against his eviction from the relocation t apartment at 60, the ability to seek a permanent injynction STANDARD I Summary judgment is a drastic remedy that should be granted only if no triable issues of moving for summary jud a matter of law, tenderi mat@tisrl issues of fact (se w t [* 6] DISCUSSION CoQper Square grgues that under the doctrine of res judicata a valid final judgment bars future actions between the sgme parties on the same cause of action, and res judicata even extends to a claim not actually litigated but which oould have been raised in the prior action. Consequently, because plaintiff asserted his first cause of action as a defense in the summary holdover proceeding, and had a full and fair opportunity to establish his defense at trial but failed to do so, plaintiff should not be afforded a second oppprtunity to try his case, for specific performance of the temporary relocatioh agreement tg resfwe him to affirmative defense during the s statement of any new matter cohs remedy (see O'Brien v City of Syracuse, hority to ehtertain" (ParKer [* 7] 229 [1903]). A Civil Court has the right to enterthin an equitqble defenpe but is without authority to grant equitable remedies such 3s specific performance of a contract, and such . a remedy is _ + I only available in t h e Supreme Court (see MQrrell & C;Q. Wine Emporium v Richalan Realty C o p , 93 AD2d 736, 737 [l DeRt 19831; W e n v Harridge House Assoc., 94 AD2d 123, 125 st [ I s t Dept 19831; Schlaich, 42 Misc at 229; Armstrong, 207 App Div at 310). Plaintiff cpuld nbt have received the remedy sought in this action in e summary hgldover procegding, as the .I Civil Court lacked subject matter jurisdictibn. Moreovsr, whether plaintiff has a right to speaific performance of the temporary relocation agreement to restore him to the possession and Home lnvs. Cotp. [* 8]

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