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Dow v. 48 Tenant’s Corp.

New York Law Journal

Volume 4, Issue 7

July 1st, 2003

Consolidation Inappropriate When Resolution of Summary Proceeding Would Be Delayed

Despite the overlap between the operative time frames in a plenary action and a summary proceeding, those cases could not be consolidated when the result would be to delay resolution of the summary proceeding according to the court in Dow v. 48 Tenant’s Corp.

Plaintiff-tenant sought consolidation of a non-payment proceeding brought against her by defendant-landlord with an action brought by the tenant premised upon breaches of the warranty of habitability.

Plaintiff commenced her case on May 11, 2001, asserting four causes of action premised on landlord’s negligence (relating to flooding in the subject premises and the burglary of certain storage space utilized by plaintiff), its unreasonable interference with plaintiff’s desire to sublet her apartment, and defendant’s alleged prevention of plaintiff’s filming in the apartment in question.

After defendant interposed an answer, the matter was transferred pursuant to CPLR 325 from the Supreme Court to the Civil Court, with the defendant filing a motion for summary judgement shortly thereafter. Deciding the motion, Judge Karen Smith dismissed three of plaintiff’s four causes of action and limited the remaining negligence cause of action to flooding that allegedly occurred after 1997, limited any damages to rent abatement, and limited claims relating to noise and fumes to the time frame defined by the applicable statute of limitations.

On August 13, 2002 defendant sued plaintiff in the Housing Part of the Civil Court for the non-payment of rent for arrears accrued between 1999 to 2002. Plaintiff interposed an answer, and thereafter an amended answer, which asserted her warranty of habitability claims. Plaintiff then sought to consolidate the two cases.

In denying the plaintiff’s application, the Court articulated the standard provided for in CPLR 602(a), and stated that “[c]onsolidation is appropriate where it will avoid unnecessary duplication of trials, save unnecessary costs and expense and prevent the injustice which would result from divergent decisions based on the same facts.” (Citation omitted).

The Court went on to note, however, that “implicit in consolidation of a plenary action with a summary proceeding is a stay of a plenary action with a summary proceeding is a stay of the summary.” Because “[t]he ends of justice are always promoted by the speedy trial of an action,” (citation omitted), the Court reasoned that despite the overlap between the operative time frames in the two actions, consolidation was inappropriate in that the summary judgement’s resolution, which would provide the parties with relief, would be unduly delayed.

Case: Dow v/ 48 Tenant’s Corp. (Civ, Cl, N.Y. Co., **031203; 5 pages).

Our thanks to Adam Leitman Bailey, Esq. of the Law Firm of Adam Leitman Bailey, P.C. for sharing this decision with our readers Mr. Bailey’s firm represented the victorious respondent

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Landlord v. Tenant

Issue Date: May 2003,

Posted On: 5/1/2003

Tenant Can’t Consolidate Warrant of Habitability Case with Nonpayment Case

Dow v. 48 Tenant’s Corp.: Index No.1868TSN2001 (3/12/03) (Civ. Ct. NY; Scarpulla, J) [5-pg. doc.]

(Decision submitted by Manhattan attorney Adam Leitman Bailey, who represented the landlord.)

Landlord sued tenant in housing court for nonpayment of rent. Tenant then sued landlord in a separate civil court action for breach of the warranty of habitability. Ten-ant asked the civil court to consolidate the two cases. The court ruled against ten-ant. Consolidation of the two cases would mean a delay of the summary nonpayment case. And tenant can raise the habitability claim in the nonpayment case.

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Landlord v. Tenant

Issue Date: January 2003,

Posted On: 1/1/2003

Tenant Waited Too Long to Raise Claims

Dow v. 48 Tenant’s Corp.: Index No. 1868 TSN 2001 (Civ. Ct. NY 8/26/02; Smith, J) [7-pg. doc.]

(Decision submitted by Manhattan attorney Adam Leitman Bailey, who represented the landlord.)

In 2001, tenant sued landlord for breach of the warranty of habitability dating back to 1993. She claimed that a radiator burst in her apartment based on landlord’s failure to maintain the heating system, there were various leaks, noises, and vibrations from the commercial shop on the first floor, and there were unreasonable amounts of fumes and dust rising up into her loft unit. Landlord argued that tenant’s old claims should be dismissed. The court ruled for landlord. Tenant was time-barred from any claim based on incidents that occurred in 1993 or 1994. Tenant’s claim was limited to floods occurring after 1997.

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