Conforti v Carlton Regency Corp.

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Conforti v Carlton Regency Corp. 2010 NY Slip Op 33921(U) December 1, 2010 Supreme Court, New York County Docket Number: 600288/2010 Judge: Marcy S. Friedman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. . SCANNED ON 12/10/2010 [* 1] SUPREME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY PRESENT: MARCY S. FRIEDMAN 57 PART Justice l.QbO 285/~Dlb INDEX NO. MOTION DATE -v - b MOTION SEQ. NO. D \ MOTION CAL. NO. The following papers, numbered 1 to 3 ~...., 1-"3 were read on this motion tolroc 1?..<:xvl IS<::.,., , ._ PAPERS NUMBERE;D Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - Exhibits _ _ _ _ _ _ _ _ _ _ _ __ 3 Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - ~ Yes n Vi Cross-Motion: Q Upon the foregoing papers, it is ordered that this motion z No w en (.) I- en ~ a::: (.!) =>z ~§ I- c ~ 0 _J 5 DECIDED IN ACCORDANCE WITH -CCOMPANYING DECISION/ORDER. ffi ~ ~~ 0 >_J s FILED LL DEC l O2010 LL I- ~ ~ NEW YORK COUNTY CLERK'S OFFICE w a::: en UJ en <( (.) z 0 l- J-L --- {·- (V Dated: MA o :":!: Check one: 0 FINAL DISPOSITION Check if appropriate: n J.S.C. ~ NON-FINAL DISPOSITION DO NOT POST 11 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK- PART 57 PRESENT: Hon. Marcy S. Friedman, JSC JAMES CONFORTI, Plaintiff(.<i), Index No.: 600288/2010 - against - DECISifI/jR~ E D THE CARLTON REGENCY CORP., and COOPER SQUARE REALTY, INC., Defendant(.<;). DEC 1 O2010 ~~~~~~~~~~~~~~~~~~ x NEW YORK In this action, defendants Carlton Regency Corp. and Cooper ~~Wl(~fU68.0fFICE (collectively Carlton) move, pursuant to CPLR 321 l(a) (4) and (7), to dismiss plaintiff's sixth and seventh causes of action, on the ground, among others, that the claims are duplicative of plaintiff's defenses in three underlying non-payment proceedings pending in Civil Court, New York Cpunty, entitled The Carlton Regency Corp. v James Conforti, Index Nos. L&T 054526/10, 054527110 and 054528110. Plaintiff cross-moves to remove and consolidate the Civil Court proceedings with the instant action, on the ground that plaintiff cannot obtain full relief in the Civil Court actions. With respect to the branch of defendant's motion seeking dismissal under CPLR 321 l(a)(4), the court finds that the Civil Court proceedings are not prior actions pending, as the petitions were served after commencement of the Supreme Court action. Nevertheless, a stay is appropriate as to plaintiffs claims in this action that duplicate his defenses in the Civil Court proceedings. (Sec 952 Assocs., LLC v Palmer, 52 AD3d 236 [l't Dept 2008].) In the instant action, plaintiff contends that the special assessment imposed by defendant [* 3] Carlton has a "disproportionate impact" on him (sixth cause of action), and seeks damages as a result of the assessment (seventh cause of action.) In Civil Court, respondent Conforti alleges as his fourth defense that the annual assessment results in a disproportionate impact on him. (See e.g. Conforti's Answer [Index No. L&T 054527/10] ii 14.) Moreover, Carlton has a pending motion in the Ci vii Court proceedings to strike Conforti' s defenses, including his defense that the assessment is unlawful. (See Joseph Aff. In Support Of Cross-Motion ii 28.) It is well settled that the Civil Court is the preferred forum for resolving landlord tenant disputes. (See Brecker v 295 Central Park W., Inc., 71ADJd564 [1st Dept 2010]; 44-46 West 6Yh Apt. Corp. v Stvan, 3 ADJd 440 [1st Dept 20041.) RP APL 743 provides that "[t]he answer may contain any legal or equitable defense, or counterclaim." Thus, all of the issues regarding the legality of the assessment can be heard as a defense to Carlton's non-payment proceedings. The only relief that plaintiff Conforti cannot obtain in Civil Court is a declaratory judgment declaring the assessment void. In the event that plaintiff requires a declaratory judgment, he may return to Supreme Court, after the Civil Court determination is made, to obtain such judgment. (See 220V Electrical Dealer Supply, Inc. v Rondat, fnc., 111 Misc2d 100 [Sup Ct NY County 1981].) It is accordingly hereby ORDERED that defendant Carlton's motion is granted to the extent of staying plaintiff's prosecution of his sixth and seventh causes of action pending detennination of the Civil Court proceedings; and it is further ORDERED that plaintiffs Conforti's cross-motion is denied; and it is further ORDERED that the parties are directed to appear in Part 57 on Thursday, January 13, 2011, at 11 :00 a.m. for a preliminary conference on plaintiffs first through fifth causes of action. -2- [* 4] This constitutes the decision and order of the court. Dated: New York, New York December I, 2010 FILED DEC 1 O2010 NEW YORK COUNTY CLERK'SOFFICE -3-

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