Brocros v. Milling

(Civ. Ct. N.Y. Cty. 3/15/05)

We represented: Respondent/Tenant

Hon. Peter H. Moulton, J.C.C.

DECISION and ORDER In this plenary action arising from a landlord-tenant dispute, defendants move 1) to consolidate this action with a summary proceeding pending in Housing Court and 2) to amend their answer herein.

FACTS AND PROCEDURAL HISTORY

Defendant William P. Milling ("Milling") is the tenant of record of Apartment 4D, a loft space, at 600 Broadway in Manhattan. Milling avers that he moved into the space in 1983 and that he made substantial improvements to it. According to Milling the loft is registered pursuant to Article 7-C of the MDL and relevant Loft Board Rules and Regulations. Milling states that he rented the loft as a live/workspace, but that plaintiff allowed conditions in the building to deteriorate and that he is currently unable to live there. Milling's wife, defendant Susan Milling, has FHS dystrophy which limits her mobility. Milling asserts that the elevator's constant mechanical problems have prevented his wife from residing in the building.

Plaintiff Brocros Realty Corp. ("Brocros"), the owner of the building, contends that the Millings have not resided at the premises and are therefore not entitled to the protection of rent stabilization laws. In 2002, plaintiff brought a non-primary residence summary proceeding in Housing Court seeking possession of the space. Trial of this summary proceeding was apparently delayed by disputes among the building's shareholders, but is now imminent.

Brocros also initiated the instant proceeding in Supreme Court, seeking damages based upon Milling's alleged misrepresentation that he intended to use the loft as a live/work space — thereby entitling him to lower rent — when he in fact intended to use the loft solely for commercial purposes. Brocros also seeks back rent and use and occupancy from defendants in this action. The Supreme Court transferred this action to Civil Court pursuant to CPLR 325(d).

Defendants contend that they have in recent years been harassed by the huilding's manager Sheldon Seidman ("Seidman") as part of an ongoing effort to force them to vacate the space. They attach to their papers a May 21, 2002 agreement between Seidman and Brocros, which states, interalia:

The parties acknowledge that Wolf (Chaskel) Kraus, the previous managing agent for the premises had made an offer to William Milling, the occupant of suite 4D to pay the sum of $250,000 in consideration of Milling's vacating said premises. This offer was made after Milling made a claim to be a tenant governed by the Loft Law of the City of New York. It is therefore understood and agreed that in the event Seidman obtains delivery of said suite in a vacant condition on or before May 21, 2005, Brocros will pay to Seidman a lump sum payment of $225,000.

Defendants state that this agreement shows that Brocros intended to use Seidman to harass them in order to force them to vacate their loft. Brocros has a more benign interpretation of the agreement. Defendants state that Seidman was recorded vandalizing their property on an internal security video camera and that these acts led the Manhattan District Attorney to charge Seidman with a misdemeanor. In his own affidavit, Seidman declines to give his version of this incident in light of the pending charges. Seidman's alleged actions give rise to some of the allegations in defendants' proposed amended answer.

DISCUSSION

This action and the Housing Court action arise from the same nucleus of operative facts. The two cases share the same central witnesses. Therefore judicial economy will be served by consolidation. Absent a showing of prejudice to a substantial right consolidation should be granted where common questions of law or fact exist. (E.g. Lambov v Inter Fence, Co., 196 AD2d 705.)

Here plaintiff claims that it will be prejudiced by the delay of its summary proceeding, which has already been pending for more than two years. The court finds that any delay caused by consolidation will be relatively short. Moreover, defendants' amended answer, which is discussed below, also asserts colorable counterclaims that are outside the scope of a summary proceeding.

In order to hear the parties' claims and counterclaims in a single proceeding, the court consolidates in this court the instant action and the Housing Court action. (See Decana, Inc. vJ.D. Ross International, Inc., 227 AD2d 208.)

Defendants also move to amend their answer to assert new facts and counterclaims. The proposed amended answer sets forth defendants' new defenses and counterclaims arising from Seidman's alleged actions.

Leave to amend an answer is to be freely granted under CPLR 3025(b). However, a court must scrutinize the proposed pleading to see if it states claims that have no chance of success. (See Crimmins Contractinq Co. v City of New York, 74 NY2d 1097.)

For the most part the proposed answer adequately sets forth defendants' defenses and counterclaims.

However, the first and ninth counterclaims are infirm. Defendants' first counterclaim seeks injunctive and declarative relief that are beyond this court's power. Contrary to defendants' counsels' assertion at oral argument, the Supreme Court's equitable jurisdiction does not accompany an action transferred to Civil Court pursuant to CPLR 325(d) (SeeDecan, 227 AD2d 208; Yaqer v Thompson, 1 Misc3d 902(A).)

The ninth counterclaim alleges a civil conspiracy "to intimidate, scare and terrorize the Millings into leaving the Building so that Plaintiff could sell the Building and/or gut and/or demolish and/or convert the premises into more profitable premises." There is no cause of action for Civil Conspiracy in New York State. (Bell v The Alden Owners, Inc., 299 AD2d 207, lv denied 100 NY2d 506; Gladliz, Inc. v Castiron Court, 177 Misc2d 392.) Such a claim stands or falls with the underlying tort. See Ward v City of New York, _AD2d_, 789 NYS2d 539.)

CONCLUSION

For the reasons stated defendants' motion to consolidate this action with the action pending in Housing Court under index number 68803/02 is granted. The branch of the motion by which defendants seek leave to amend their answer is granted to the extent that the proposed amended answer appended to defendants' motion papers, with the exception of the first and ninth counterclaims, shall stand as defendants' answer.

Accordingly it is

ORDERED that the motion is granted and the above-captioned action is consolidated in this Court with Brocros Realty Corp. v William Millinq L&T Index No. 68803/02, under the index number and caption of this case; and it is farther

ORDERED that the pleadings in the actions hereby consolidated shall stand as the pleadings in the consolidated action; and it is further

ORDERED that upon service on the Clerk of the Court of a copy of this order with notice of entry, the Clerk shall consolidate the papers in the actions hereby consolidated and shall mark his records to reflect the consolidation.