Boerum Commercial LLC v Meyers

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Boerum Commercial LLC v Meyers 2018 NY Slip Op 32649(U) September 13, 2018 Supreme Court, Kings County Docket Number: 505115/18 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 10/17/2018 11:40 AM INDEX NO. 505115/2018 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/17/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KI NGS : CI VI L TERM: COMMERCIAL PART 8 ---------------- ------------------- - -- ----x BOERUM COMMERCIAL LLC , Pla i n t iff , Dec i s ion and ord er - against - Index No . 505 1 15/18 (l\J' ~~ MICHAEL MSYERS & GREGG REUBEN , De fe n da nts, -------- ---------------------- - ------- -- -- x September 1 3 , 2018 PRESENT : HON . LEON RUC HELSMAN The defe ndants hav e moved see ki ng t o remove a Civil Co ur t a ction , namely Boe r um Commercia l LLC v . Atlantic Parki ng LLC , Index Number 68082/2018 to Supreme ac tions p urs uant to CPLR § 60 2 . Court and to cons olida t e th e t wo Th e pl a i n t i ff o ppose t h e mot i on a nd papers we re submitted by all pa r ties and argume nts held . Afte r reviewing the arguments of a ll parties t his court now ma kes the following determi n ati on . Backg round The plaintiff i s the o wner of a pa r ki ng g ar age located at 238 Atlantic Avenue in King s County . On November 19 , 2008 a n entity , At l antic Parki n g LLC , en tered into a l ease wit h pla int i ff ' s predecesso r . The lease was pe r sonally guaranteed by the defendants herein Michael Meyers and Greg g Reuben . comme n ced b ased upon t h e The civil court action was f ailure to pa y r ent . Th is ac ti o n was commenced a gainst the defendants the gu arantors of the payment of such rent. The defe n da n ts now move seekin g t o con solidate t he two 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 10/17/2018 11:40 AM NYSCEF DOC. NO. 54 INDEX NO. 505115/2018 RECEIVED NYSCEF: 10/17/2018 actions on the grounds the two actions essentially involve the same questions of law and fact , namely the payment of reffc. . whet~er they are responsible for The plaintiff o ppo ses the motion on the grounds the parties are not the same . While the defendants herein are the guaranto rs , they are not the same defendant that appears on the civil action . Conclusions of Law It is well settled that consolidation of two actions is proper when it will save unnecessary duplication , cost and expense and where the issues are interrelated and where judicial economy will be best served (Braun v . Fra ydun Realt y Coro ., 158 AD2d 430 , 552 NYS2 d 5 [1 st Dept ., 1990]) . Moreover , where an action in Civil Court i s consolidated with an action in Supreme Court then both consolidated actions are heard in Supreme Court (Henr y v . Solomon & Solomon P . C . , 203 AD2d 791 , 610 NYS2d 679 [3 '' Dept ., 1994]) . In this c ase , defendant seeks to consolidate this action which asserts that " defendants each individually owe the following to Plaintiff as of the date he reof the sum of $1 , 228 , 750 , plus l ate fees , interest and attorneys ' fees" (see , Verified Complaint , ~ 16 ) with the Civil Court action which asserts " Respondent tenants have defaulted in the payment thereof , and th e total rent in arrears as o f the date hereof is 2 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 10/17/2018 11:40 AM NYSCEF DOC. NO. 54 $1 , 228 , 750 . 00 " (see, Petition , INDEX NO. 505115/2018 RECEIVED NYSCEF: 10/17/2018 ~ 5) . While the actual defendants in both cases are different entities , the defendants in this action are the guarantors of the Civil Court action , thus , essentially , both lawsuits concern the s a me underlying parties . The ca se of Kally v. Mount Sinai Hospital , 44 AD3d 1010 , 844 NYS2d 415 [2d Dept. , 2007] is instructive . In that case the court granted a consolidation of a holdover proceeding in Civil Court with an action to rescind the lease in Supreme Court . The court acknowledged in reversing the lower court that Civil Court is the preferred forum for landlord ten a nt issues , nevertheless , the court granted consolidati on . The cou r t explained that "where common questions of law or fact exist , a mo ti on to consolidate should be granted absent a showing of prejudice to a s ubstan t ia l right by the party opposing the motion . Here , both the holdover proceeding and the action concern the same par ties , and both involve common questions of law and fact regard ing a lea se executed by the defendant with respect to the premises that are the subject of the holdover proceeding . Re solution of the action in the Supreme Court will necessarily decide the issues in the holdover proceeding , and the t wo should b e consolidated in the interest of jud icial economy " (id ) . Likewise , the two cases concern the same ultimate parties and involve the same questions of la w and fact . The plaintiff asserts thaL "removal of the summary proceeding in Civil Court 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 10/17/2018 11:40 AM NYSCEF DOC. NO. 54 INDEX NO. 505115/2018 RECEIVED NYSCEF: 10/17/2018 would be delayed by months or years if the summary proceeding commenced against Atlantic Ave. Parking LLC and John Doe LLC , wh o are not parties to this action , was to be removed to this Court " (Affirmation in Opposition , ~ 28) . However , the plaintiff does not provide any basis for such a dire eventuality . The plaintiff alleges the defendants , both in this case and the Civil Court case owe back rent . Those claims will be pursued by the plaintiff and for the sa ke of judicial economy the cla ims shold be heard in one court . Therefore , the motion seeking CJn so l ida tion pursuant to CPLR §602 (b) is granted . So ordered . ENTER : DATED : September 13 , 2018 Brooklyn N. Y. Hon . Leon Ruchelsrnan JSC 4 4 of 4

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