Panda Nail Top, Inc. v Hernandez

[*1] Panda Nail Top, Inc. v Hernandez 2018 NY Slip Op 50918(U) Decided on June 18, 2018 District Court Of Nassau County, First District Muscarella, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 18, 2018
District Court of Nassau County, First District

Panda Nail Top, Inc., Plaintiff(s),

against

Felipe Hernandez, Defendant(s).



CV-003738-18



Attorneys for Plaintiffs: Lawrence V. Carra, Esq., 114 Old Country Road, Mineola, NY 11501 (516) 742-1135

Attorneys for Defendants: Pagan-Lopez Law Office, 29-28 41st Avenue, Suite 23, Long Island City, NY 11101 (347) 434-3041
Ignatius L. Muscarella, J.

The following papers have been considered by the Court on this motion submitted May 30, 2018

Papers Numbered

Notice of Motion w/ annexed supporting papers 1

Affirmation in Opposition w/ annexed supporting papers 2

Reply Affirmation 3

Defendant Felipe Hernandez (Hernandez) moves for an order pursuant to CPLR 2201 staying this action pending the determination of an action pending in the Supreme Court Nassau County titled "271-273 Fulton Avenue Corp. v Peter A. Pekich d/b/a/ Medcor Holding Co. and The County of Nassau" [Index No. 607985/2017].

As appears from the papers before the court, plaintiff Panda Nail Top, Inc. (Panda) was the tenant of 271-273 Fulton Avenue Corp. (Fulton) of which Hernandez is the President. A dispute, however, exists over whether Fulton remains the owner of the premises still occupied by Lounge or whether title to the premises were transferred to Peter A. Pekich d/b/a/ Medcor Holding Co. (Pekich) in or about May/June 2017.

Panda brings the underlying District Court action against Hernandez to recover the pro-rated rent it paid directly to Hernandez for the period from June 15, 2017 - August 31, 2017 totaling $14,650.27 during a period when, as alleged by Panda, neither Hernandez nor Fulton had any ownership interest in the leased premises.

As alleged in the affidavit in opposition submitted by Panda's president, Loc Hoang, (s)he first became aware of the transfer in title when (s)he was served with a holdover proceeding in August, 2017 by Pekich - which proceeding was settled only after Panda effected payment of $10,950.00 to Pekich for the same June 15, 2017 - August 31, 2017 rental period already to paid to Hernandez.

Hernandez, in turn, seeks a stay of this action as there is pending the Supreme Court action brought by his company Fulton against Pekich to settle title to the leased premises, thereby re-establishing Fulton's status as landlord during all relevant periods and, in turn, Hernandez' entitlement to retain possession of the $$14,650.27 Panda paid him.

CPLR 2201 provides as follows: "Except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just." Said statute is applicable to this court (see UDCA 1001).

"Unlike CPLR 3211(a)(4) [which permits dismissal of an action where there is another action pending between the same parties and involving the same cause of action], CPLR 2201 is not limited to situations in which the action stayed is between the same parties and for the same cause as the other action." (4-2201 Weinstein-Korn-Miller, NY Civ Prac ¶ 2201.03.)

Rather, where there are "overlapping issues and common questions of law and fact and the determination the prior action may dispose of or limit issues which are involved in the subsequent action" "consideration of the goals of judicial economy, orderly procedure and the prevention of inequitable results" (Belopolsky v. Renew Data Corp., 41 AD3d 322 [1st Dept 2007] [internal quotes and citations omitted]) render it an appropriate exercise of the court's discretionary authority to stay the subsequent action (id.).

Here, the crux of Panda's claim to entitlement to return of the rent paid to Hernandez is premised upon Hernandez' company no longer having title to the leased premises. Pekich clearly has an interest in the determination of that issue which would only be binding upon him if he were provided a full and fair opportunity to participate. Thus, while there exists no identity of parties in these two actions and while the causes of action differ, the issues and key parities overlap to such a degree that to allow the District Court action to go forward would necessarily implicate the potential need to add Pekich as a necessary party to this action (see CPLR 1001) or at least be considered a party who should be permissively joined (see CPLR 1002). Indeed, had Panda learned of the dispute in ownership prior to paying the June, 2017 rent to anyone, an interpleader action (see CPLR 1006) would have been ideally suited to shield Panda from the entire disputed title issue.

Under the circumstances, and given the considerable discretion afforded this court pursuant to CPLR 2201, a stay is granted pending the outcome of the Supreme Court action.

To help insure that neither actions languish and in keeping with the court's authority to include with the stay "such terms as may be just" (CPLR 2201) status conferences shall be held before the undersigned on a regularly scheduled basis at this courthouse, room 259, 99 Main Street, Hempstead, NY. The first such conference shall be held on August 8, 2018 at 9:30 AM.

At or before all such status conferences counsel for Hernandez shall provide to both plaintiff's counsel and this court a written affirmation reporting on the status of the Supreme Court action which report may supplemented orally during the conference itself. That counsel for Hernandez is not counsel of record for Fulton in the Supreme Court action should not preclude him from ascertaining the status of that action given his representation of Fulton's President [FN1] . Provided said affirmation has been provided to Panda's counsel in advance of any conference, the parties may consent to the adjournment of any scheduled status conference, thereby minimizing the costs to their respective clients.

SO ORDERED:

Hon. Ignatius L. Muscarella
District Court Judge
Dated: June 18, 2018 Footnotes

Footnote 1:Movant's papers already include the representation that the Supreme Court action "is in the discovery phase and up for a compliance conference on June 14, 2018" (defendant's Memorandum of Law dated April27, 2018 at p. 3).