Elnazer v Quoquoi
Annotate this CaseDecided on March 6, 2012
Civil Court of the City of New York, Richmond County
Farouk Elnazer, Plaintiff,
against
Juliette C. Quoquoi, Defendant.
14802/11
Plaintiff Self Represented
Defendant Mirkin & Gordon 98 Cutter Mill Road, Great Neck NY
Philip S. Straniere, J.
Plaintiff, Farouk Elnazer, commenced this action against the defendant, Juliette Quoquoi, alleging that the defendant failed to pay rent due and owing from her occupancy of the first floor apartment at 76 Boyd Street, Staten Island, New York. A trial was held on January 31, 2012. Plaintiff appeared without an attorney. Defendant was represented by counsel.
At the trial, the testimony disclosed that there was a prior summary proceeding between these parties in the Housing Part of Civil Court (L & T No.52141/09) in which the plaintiff, as the petitioner-landlord, alleged that the defendant, as the respondent-tenant, held over and remained in possession of the leased premises after having her tenancy terminated. In the holdover proceeding petitioner alleged that there was due and owing rent from April 2009. The petitioner sought a judgment of possession and the issuance of a warrant of eviction as well as a money judgment for rent due and owing. In this civil action plaintiff is seeking rent for the months of May 2009 through December 2009; the same months alleged unpaid in the summary proceeding.
A review of the landlord-tenant file leads to the question "Why is this case in the civil part?"
Petitioner brought the summary proceeding in July 2009 with the service of the notice of petition and petition. The case first appeared on the Housing Part calendar on July 17, 2009. At that time the petitioner was self-represented and the respondent had counsel. The matter was adjourned until August 5, 2009. On that date it was marked for "trial" on September 16, 2009 and then again for "trial" on October 7, 2009 when it was adjourned by stipulation until December 22, 2009. In between the petitioner, on September [*2]28, 2009, filed an order to show cause demanding a rent deposit which was returnable October 7, 2009. On October 7, 2009, the court denied the request for a deposit, but entered an order requiring the parties to complete discovery as the court found disclosure necessary so as to deal with the issues raised in respondent's counterclaim. This order set the trial date of December 22, 2009.
On October 9, 2009, petitioner, still without counsel, sought an order canceling the discovery and dismissing respondent's counterclaim. The court denied that application and reiterated that the discovery order remained in effect. On November 20, 2009, petitioner, now represented by counsel, sought both a protective order and an order vacating respondent's discovery demands. Respondent filed opposition to that motion. That motion was made returnable December 9, 2009. On December 9, 2009, the motion was marked on the court file "petitioner withdraws OSC withdrawn as moot."
The case remained scheduled for trial on December 22, 2009. There is no marking on the court file jacket as to what occurred on December 22, 2009. As a result, this court was required to check the court computer record which shows that the matter was marked "withdrawn" on that date. The neither the CPLR nor the RPAPL recognize "withdrawn" as an appropriate marking for a trail ready case. It should have been properly "discontinued." There is no written order, stipulation or other documentation indicating the disposition of this summary proceeding. One would think with both sides being represented by counsel at that point a proper disposition could have taken place. As a result the issue of what money is due and owing landlord was never determined and is now in the Civil Part of the court for resolution because the landlord commenced this action.
Apparently what made the motion in regard to the protective order "moot" was disclosed at the civil trial. It was the fact that the petitioner received and accepted keys from the respondent on or about December 2, 2009 and landlord changed the locks on December 10, 2009. At that point, petitioner was still entitled to obtain a judgment of possession and a warrant of eviction as well as a judgment for any rent or use and occupancy due and owing when the case appeared on the trial calendar on December 22, 2009. Instead, petitioner abandoned the summary proceeding without complying with applicable statutes. As set forth below he failed to preserve his right to seek redress in another forum thereby throwing both these litigations into a procedural limbo.
One explanation of how this happened is that the housing part has purchased a transporter teleportation machine from the Federation when the Starship Enterprise was decommissioned thereby enabling housing court litigation to be dematerialized there and rematerialized as new civil action so that the parties can engage in the Civil Court version of "Ground Hog Day."
CPLR §3217 sets forth the procedure to be followed for the voluntary discontinuance of an action. It provides: [*3]
Voluntary Discontinuance (a) Without an order. Any party asserting a claim may discontinue it without an order1. by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or within twenty days after service of the pleading asserting the claim, whichever is earlier, and filing the notice with proof of service with the clerk of the court; or2. by filing with the clerk of the court before the case has been submitted to the court or jury a stipulation in writing signed by the attorneys of record for all parties,...(b) by order of the court. Except as provided in subdivision (a), an action shall not be discontinued by a party asserting a claim except upon order of the court and upon terms and conditions, as the court deems proper. After the cause has been submitted to the court or jury to determine the facts the court may not order an action discontinued except upon the stipulation of all parties appearing in the action.( c) Effect of discontinuance. Unless otherwise stated in the notice, stipulation or order of discontinuance, the discontinuance is without prejudice, except that a discontinuance by means of notice operates as an adjudication on the merits if the party has once before discontinued by any method an action based on or including the same cause of action in a court of any state or the United States.
Further, in Civil Court in regard to "any discontinued action, the attorney for the plaintiff shall file a stipulation or statement of discontinuance with the clerk of the court within 20 days of such discontinuance" [22 NYCRR §208.16]. There is no provision as to what happens if this procedure is not followed. Presumably, then the case is not discontinued and remains active subject to dismissal under some other statute or rule.
Applying the above statute to the facts of this case, it must be concluded that neither party, nor their respective attorney, has complied with the rule so as to have this landlord-tenant proceeding marked as having been "voluntarily discontinued," assuming that was the intent of the parties.
As such this proceeding is still pending as an active case in the landlord-tenant part. Plaintiff herein has a choice, to either revive this case by making an appropriate application in the Housing Part and having the issue of money due and owing resolved in the forum he initially selected, or properly discontinue that proceeding and bring a new civil action.
Another possible avenue would be for the Housing Part to dismiss the action for "want of prosecution" pursuant to CPLR §3216. The problem with utilizing this section is that it appears to only be applicable to cases requiring a "note of issue." Civil Court uses a "notice of trial" while the Housing Part requires neither document. Instead the clerk sets [*4]the return date. It is also a section designed to dismiss cases that have never reached the trial calendar so it would not be applicable to the underlying landlord-tenant proceeding.
CPLR §3404 provides:
A case in the supreme court or county court marked "off" or struck from the calendar or unanswered on a clerk's calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order.
Case law has held that this provision is not applicable to the Civil Court because the statute does not specifically mention "civil court of New York City" [Chavez v 407 Seventh Avenue Corp., 39 AD3d 454 ( 2007)]. Equivalent relief is available under the Civil Court Rules [22 NYCRR §208.14( c)] and can only be achieved by a stipulation between the parties or by motion on notice made within one year after the action is stricken. This section also does not provide any relief because the matter was not "stricken" from the calendar. The case was marked "withdrawn" on the court file only.
What is also troubling about this situation is that the parties, particularly the respondent who is more likely than not to be unrepresented, may be leaving the Housing Part believing all issues with the landlord have been resolved because the tenant has surrendered premises and vacated the apartment not realizing that the statute of limitations for any claim for unpaid rent would be six years as it is based on breach of the lease contract. This has the potential of resulting in an increased likelihood of a default judgment being entered. This case is a prime example of why the matter should have been disposed of in the Housing Part because the defense asserted in both the summary proceeding and this civil action involved the landlord's breach of the warranty of habitability. By permitting the landlord to commence this action twenty-months after the last court appearance in the summary proceeding and twenty-months after the vacating the premises by the tenant, makes it impossible for the court to fairly evaluate that defense. A court ordered inspection at this time would be meaningless. In situations such as this, the longer the landlord delays in bringing a civil action the more beneficial it may be to the plaintiff. This is why written orders are necessary whenever a summary proceeding is terminated by a method other than trial or written stipulation.
Based on the foregoing, plaintiff's current civil action is dismissed without prejudice to renew after plaintiff properly terminates or obtains resolution of the still open landlord-tenant action.
Exhibits, if any, will be available with the clerk of the court thirty days after receipt of a copy of this decision.
The foregoing constitutes the decision and order of the court.
Dated:_________________________
Staten Island, NYPHILIP S. STRANIERE
Judge, Civil Court
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