City of New York v Akbar's Self Help, Inc.

[*1] City of New York v Akbar's Self Help, Inc. 2009 NY Slip Op 52112(U) [25 Misc 3d 129(A)] Decided on October 13, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-1567 K C.

City of New York, Respondent,

against

Akbar's Self Help, Inc., DERRICK WALKER and ALLAH SCHOOL IN MEDINA, Appellants, -and- JOHN and JANE DOE, Occupants.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered May 2, 2008. The final judgment, after a nonjury trial, awarded possession to landlord.

ORDERED that the final judgment is affirmed without costs.

In this licensee summary proceeding (RPAPL 713 [7]), the record indicates that the Civil Court advised occupants' counsel that it would stay the proceeding if occupants' counsel commenced a Supreme Court action with regard to occupants' claim of title by adverse possession. On the next court date, occupants' counsel advised the court that he had filed a Supreme Court action and showed the court the Supreme Court index number, but the City claimed it had not yet been served in that action. The Civil Court refused to stay the proceeding, on the ground that a Supreme Court action had not been properly commenced, and did not afford occupants' counsel an adjournment so that he could bring in occupants' witnesses. Following the nonjury trial, at which occupants' counsel did not call any witnesses, the Civil Court awarded landlord a final judgment of possession.

While the granting of a motion for a stay of an action pending a determination of another action is discretionary (see Asher v Abbot Lab., 307 AD2d 211 [2003]; Solerno v Solerno, 154 AD2d 430 [1989]), a summary proceeding should generally not be stayed unless it appears that there are clear equitable grounds entitling the tenant to retain possession, which grounds cannot effectively be interposed as a defense in the summary proceeding (Neuman v Namposa Realty Corp., 119 NYS2d 835 [1953]; see e.g. Sal De Enters. v Stobar Realty, 143 AD2d 180, 181-182 [1988]; Amoo v Eastlake Realty Co., 133 AD2d 657 [1987]; Siegel, NY Prac § 577 at 998-999 [4th ed]). In the instant proceeding, occupant Akbar's Self Help, Inc. contends that it is the owner of the premises by virtue of adverse possession, and that the issue of ownership should be [*2]determined in the Supreme Court action. However, a question of title can properly be raised as a defense to a summary proceeding even though title to the premises cannot ultimately be determined as an affirmative claim in the context of a summary proceeding (RPAPL 743; CCA 905; Nissequogue Boat Club v State of New York, 14 AD3d 542 [2005]; see Paladino v Sotille, 15 Misc 3d 60 [App Term, 9th & 10th Jud Dists 2007]; Chopra v Prusik, 9 Misc 3d 42 [App Term, 2d & 11th Jud Dists 2005]). Under the circumstances, we find that the Civil Court did not improvidently exercise its discretion in refusing to stay the proceeding pending determination of the Supreme Court action. However, the Civil Court improvidently exercised its discretion in failing to afford occupants' counsel an adjournment so that he could bring in occupants' witnesses, as counsel was clearly expecting, based on the court's prior statements, that a stay would be granted.

Ordinarily, this improvident denial of an adjournment would lead to a reversal of the final judgment and a remand for a new trial. However, this court takes judicial notice of the fact that the Supreme Court, Kings County, has now dismissed the adverse-possession complaint, finding, inter alia, that the City held the property for public purposes and that title to property owned by the City for public purposes cannot be lost through adverse possession (Akbar Self Help Inc. v City of New York, 24 Misc 3d 243 [Sup Ct, Kings County 2009]). In view of the Supreme Court's determination that there is no merit to the adverse-possession claim, a new trial to afford occupants an opportunity to assert this claim is not warranted. Accordingly, as this was occupants' only defense, the final judgment is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: October 13, 2009