CASSM Realty Corp. v Cohen

[*1] CASSM Realty Corp. v Cohen 2013 NY Slip Op 50144(U) Decided on February 1, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 1, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570869/12.

CASSM Realty Corp., Petitioner-Landlord- - -

against

Maxi Cohen, Respondent-Tenant-Appellant.

Tenant appeals from so much of an order of the Civil Court of the City of New York, New York County (John H. Stanley, J.), dated August 2, 2012, as denied her motion to dismiss the within nonpayment summary proceeding or, alternatively, to stay the proceeding pending determination of a related Supreme Court action.

Per Curiam.

Order (John H. Stanley, J.), dated August 2, 2012, affirmed, with $10 costs.

Civil Court properly denied that branch of tenant's motion seeking to dismiss the within nonpayment summary proceeding. To the extent tenant sought dismissal on the ground of a prior action pending, the dismissal motion, filed nearly four months after the interposition of tenant's answer, was untimely (see CPLR 3211[e]). In any event, on this record and in view of the "strong preference" for resolving landlord and tenant disputes in Civil Court (see 44-46 W. 65th Apt. Corp. v Stvan, 3 AD3d 440, 441 [2004]), it cannot be said that the court abused its broad discretion in denying tenant's CPLR 3211(a)(4) motion (see generally Haller v Lopane, 305 AD2d 370 [2003]). Insofar as tenant premised its dismissal motion on an (unpleaded) defense of retaliatory eviction, no such defense lies in the context of landlord's nonpayment claim (see 390 W. End Assoc. v Raiff, 166 Misc 2d 730, 734 [1995]) and, further, tenant's proof on the issue was clearly insufficient to warrant summary dismissal at this juncture (see 339-347 E. 12th St. LLC v Ling, 35 Misc 3d 30 [2012]). Nor did any pleading irregularities in the underlying petition render the proceeding jurisdictionally defective (see Birchwood Towers #2 Assoc. v Schwartz, 98 AD2d 699, 700 [1983]; Jackson v New York City Hous. Auth., 88 Misc 2d 121, 122 [1976]).

Finally, no basis was shown to stay the proceeding pending the outcome of the pending Supreme Court action between the parties (see Cox v J.D. Realty Assoc., 217 AD2d 179, 182-183 [1995]; Scheff v 230 E. 73rd Owners Corp., 203 AD2d 151 [1994]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 01, 2013