Stormville 120 LLC v Pascazi
Annotate this CaseDecided on July 2, 2018
Justice Court of the Town of East Fishkill, Dutchess County
Stormville 120 LLC, Petitioner,
against
Kathleen Pascazi, Respondent.
17110335
Petitioner by Vincent J. Catalano, Jr., Esq., 4 Liberty Street, Suite 2, Poughkeepsie, NY 12601
Respondent by Michael S. Pascazi, Esq., 1065 Main Street, Suite D, Fishkill, NY 12524
Brian M. Rudner, J.
Respondent Kathleen Pascazi (hereinafter "Pascazi") moves this Court, by notice of motion dated December 29, 2017, for an order dismissing the petition herein, or in the alternative staying this proceeding pursuant to Rule 3211(a)(4) of the Civil Practice Law and Rules ("CPLR"); for dismissal pursuant to CPLR 2309(c) and Real Property Actions and Proceedings Law Section 299-a; for an award of counsel fees; and such other and further relief as this Court deems just and appropriate.
The proceedings, as they appear from the moving papers, supporting documents, and pleadings, are as follows: Petitioner Stormville 120 LLC (hereinafter "Stormville") commenced this summary proceeding by filing of a Notice of Petition and Petition to Recover Real Property with this Court on November 22, 2017. The Petition sought to recover possession of 120 Old Route 52, Apartment 2B, Stormville, New York 12582 (hereinafter "the Premises") that Stormville had leased to Pascazi pursuant to a written lease dated December 12, 2014 (hereinafter "the Lease"), as well as unpaid rent in the amount of $1,400.00. Pascazi filed a verified answer to the Petition on or about November 27, 2017. According to her moving papers, Pascazi vacated the premises on December 13, 2017. Stormville does not contest that Pascazi vacated on this date.
On or about October 31, 2017, prior to Stormville filing this summary proceeding, [*2]Pascazi filed suit in Supreme Court, Dutchess County (Index Number 52630/2017, hereinafter "the Prior Action") against Stormville and others[FN1] . In the Prior Action, Pascazi asserted causes of action against Stormville for breach of contract (for Stormville's alleged breach of the Lease) and unjust enrichment, and sought damages of $30,800.00. By notice of motion dated December 29, 2017, Stormville filed a motion in the Prior Action seeking, inter alia, dismissal of Pascazi's complaint. In a Decision and Order dated April 5, 2018, the Honorable James V. Brands granted the relief sought in Stormville's motion and dismissed the Complaint in the Prior Action. Pascazi timely filed a notice of appeal of Judge Brands' decision in the Prior Action. Further, on May 16, 2018, Pascazi moved, by notice of motion, to reargue Judge Brands' decision. The motion to reargue appears to have been fully submitted but has not yet been decided by Judge Brands.
Discussion
(a) Motion to Dismiss and/or Stay Pursuant to CPLR 3211(a)(4)
CPLR 3211(a)(4) authorizes dismissal of an action on the ground that there is another action pending involving the same subject matter. In the instant matter, Pascazi filed her motion to dismiss on December 29, 2017, over thirty days after she had filed her verified answer to the Petition. As such, Pascazi waived her right to move pursuant to CPLR 3211(a)(4). A party waives its right to move pursuant to CPLR 3211(a)(4) if it fails to do so prior to service of a responsive pleading, even if the responsive pleading includes the appropriate affirmative defense. See CPLR 3211(e); Clinkscale v. Sampson, 74 AD3d 721 (2d Dep't 2010); Bennett v. Hucke, 64 AD3d 529 (2d Dep't 2009); Diaz v. DiGiulio, 29 AD3d 623 (2d Dep't 2006); Theatre Confections, Inc. v. Cate Enterprises, 87 Misc 2d 155 (Justice Court, Town of New Windsor, 1976). As such, Pascazi's motion to dismiss pursuant to CPLR 3211(a)(4) is denied as untimely.
However, there is authority for this Court to grant a stay pursuant to CPLR 2201, even if not specifically requested by one of the parties, under circumstances similar to the case at bar. See Theatre Confections, supra at 159 ("Therefore this Court is entitled to order a stay of the proceeding before it notwithstanding the moving party's waiver of its right to apply under CPLR 3211(a)(4)."). In Theatre Confections, although the movant did not seek relief under CPLR 2201, the Justice Court elected to treat the motion to dismiss as an application for a stay under CPLR 2201 rather than convert the 3211 motion to dismiss to a motion for summary judgment pursuant to CPLR 3211(c).
This Court may make full use of the stay provisions of CPLR 2201. CPLR 101 provides that the CPLR "shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute." Nothing in the Uniform Justice Court Act is inconsistent with section 101.
Under the circumstances at bar, the Court finds that justice and judicial economy dictate that this proceeding be stayed, pending the outcome of the Prior Action. The two actions involve a "substantial identity of the parties and causes of action " See Cherico, Cherico & Assoc. v. Midollo, 67 AD3d 622 (2d Dep't 2009) (" it is sufficient if the two actions are sufficiently similar and that the relief sought is the same or substantially the same.") (internal citations omitted); see also White Light Prods. v. On The Scene Prods., 231 AD2d 90 (1st Dep't 1997) ("The critical element is that both suits arise out of the same subject matter or series of alleged wrongs."). In the instant analysis, the parties in each action are essentially identical. This proceeding and the Prior Action involve competing claims for money damages arising out of the Lease, to which the parties in both actions are signatories. Because Pascazi vacated the Premises, there is no longer a holdover component of this proceeding, and Stormville's remaining claim is for non-payment of rent and other money damages. All of these claims can be asserted as counter-claims in the Prior Action, should Pascazi be successful in her appeal of Judge Brands' order dismissing the complaint in the Prior Action. However, should this Court adjudicate the non-payment claims of the petition, there is a risk of conflicting judicial outcomes should Pascazi be successful in her appeal of Judge Brands' order dismissing the complaint in the Prior Action.
For the foregoing reasons, this proceeding is stayed pending a final determination of the Prior Action.
(b) Motion to Dismiss Petition as Facially Defective
Pascazi has also moved to dismiss the petition for failure to comply with CPLR 2309(c) and Real Property Law 299-a. For the reasons that follow, that relief is denied.
Section 2309(c) of the CPLR provides:
An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation.Section 299-a of the Real Property Law also requires a certificate of conformity for a sworn document signed outside of New York state. Pascazi asserts that, because the petition did not include a certificate of conformity, it must be dismissed. This claim is without merit.
On May 24, 2018, Stormville served upon counsel for Pascazi and filed with the Court a Certificate of Conformity which complies with the dictates of CPLR 2309(c) and RPL 299-a. Courts of this State are not unduly rigid about the requirement of a certificate of conformity; as long as the oath was duly given, the authentication of the oathgiver's authority can be secured later and given nunc pro tunc effect if need be. See Moccia v. Carrier Car Rental, Inc., 40 AD3d 504 (1st Dep't 2007) (after plaintiff's timely objection, defendant "submitted the original of the out-of-state, nonparty witness affidavit submitted in opposition to the motion bearing a notary seal, together with the appropriate certification, and complying with the oath formalities [*3]of CPLR 2309(c)"); see also Raynor v. Raynor, 279 AD2d 671 (2d Dep't 1951) ("the lack of an authenticating certificate was a defect or irregularity which could be corrected nunc pro tunc").
Based upon the foregoing, Pascazi's motion to dismiss the petition as facially defective is DENIED.
(c) Motion for Counsel Fees
Pascazi's motion for counsel fees is denied, without prejudice to such an application upon the conclusion of this proceeding.
Conclusion
Accordingly, it is hereby ORDERED that proceedings before this Court are stayed, pursuant to CPLR 2201, pending the final determination of the Prior Action. Counsel for the parties are directed to notify the Court in writing upon their receipt of a decision on Pascazi's motion to reargue, an order of the Appellate Division resolving Pascazi's appeal, or any other documentation evidencing a termination and/or conclusion of the Prior Action. Counsel for the parties are further directed to appear in this Court on September 26, 2018, at 5:30 p.m. for a status conference.
All other relief requested is DENIED, for the reasons set forth herein.
IT IS SO ORDERED
Date: July 2, 2018
Hopewell Junction, New York
___________________________
Brian M. Rudner, Town Justice Footnotes
Footnote 1: The complaint in the Prior Action also named Stormville Management Corp. and John/Jane Does 1-5 as defendants.
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