Forest Hills S. Apts., LLC v Lynch

[*1] Forest Hills S. Apts., LLC v Lynch 2014 NY Slip Op 50398(U) Decided on March 5, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2013-64 Q C.

Forest Hills South Apts., LLC, Respondent,

against

Bernadette Lynch, Appellant, -and- "JOHN DOE" and "JANE DOE", Undertenants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Gilbert Badillo, J.), dated December 11, 2012. The order denied tenant's motion to, in effect, set aside so much of a prior order of the same court dated April 26, 2010 as, sua sponte, "severed [her counterclaim] without prejudice to a plenary proceeding" in a holdover summary proceeding.

ORDERED that the order dated December 11, 2012 is reversed, without costs, and tenant's motion to, in effect, set aside so much of the April 26, 2010 order as, sua sponte, "severed [her counterclaim] without prejudice to a plenary proceeding" is granted.

In this holdover proceeding based on a claim that disturbing noises emanated from a ceiling fan in tenant's apartment, tenant counterclaimed for attorney's fees and expert witness fees. After tenant replaced the fan, the Civil Court, by order dated April 26, 2010, granted landlord's oral application to discontinue the proceeding and, sua sponte, "severed" tenant's counterclaim "without prejudice to a plenary proceeding." By order dated December 11, 2012, the court denied tenant's motion to, in effect, set aside so much of the prior order as had "severed" her counterclaim "without prejudice to a plenary proceeding."

While New York does not have a mandatory or compulsory counterclaim rule (see Modell & Co. v Minister, Elders & Deacons of Ref. Prot. Dutch Church of City of NY, 68 NY2d 456, 462 n 2 [1986]; State of New York v Chapman, 136 AD2d 75 [1988]; but see O'Connell v 1205-15 First Ave. Assoc., LLC, 28 AD3d 233 [1st Dept 2006]), tenant's counterclaim was properly subject to adjudication in this summary proceeding, as the ultimate outcome of the fan-noise issue was reached in this proceeding (compare 354 E. 66th St. Realty Corp. v Curry, 40 Misc 3d 20 [App Term, 1st Dept 2013]; see also O'Connell v 1205-15 First Ave. Assoc., LLC, 28 AD3d 233). Thus, it was error for the Civil Court to "sever" tenant's counterclaim for a "plenary proceeding." We do not pass on the merits of tenant's counterclaim.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 05, 2014