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TENANT’S MOTION TO REMOVE AN EVICTION PROCEEDING FROM CIVIL COURT AND CONSOLIDATE IT WITH A BREACH-OF-LEASE ACTION IN SUPREME COURT SHOULD HAVE BEEN GRANTED; LEASE PROVISIONS PRECLUDED THE COUNTERCLAIMS AND EQUITABLE RELIEF IN THE EVICTION PROCEEDING, BUT THAT RELIEF IS AVAILABLE IN THE SUPREME COURT PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s (tenant’s) motion pursuant to CPLR 602(b) to remove a summary proceeding (eviction proceeding) from Civil Court and consolidate it with the breach-of-lease proceeding in Supreme Court should have been granted:

On January 1, 2015, the plaintiff executed a five-year commercial lease with the defendant for a condominium unit in a building in Brooklyn for the purpose of operating a medical practice on the premises. In May 2017, the defendant commenced a summary proceeding against the plaintiff in the Civil Court, Kings County, to recover possession of the premises and unpaid rent. In October 2017, the plaintiff commenced this action against the defendant in the Supreme Court, Kings County, inter alia, to recover damages for breach of the lease. The plaintiff also moved, in effect, pursuant to CPLR 602(b) to remove the summary proceeding from the Civil Court to the Supreme Court and to consolidate it with the instant action. … Although the Civil Court is the preferred forum for the resolution of landlord-tenant disputes when the tenant may obtain full relief in a summary proceeding … , here, the lease provisions preclude the plaintiff from asserting counterclaims in the summary proceeding and the equitable relief sought by the plaintiff in the Supreme Court is unavailable to it in the summary proceeding in Civil Court … . Barkagan v S&L Star Realty, LLC, 2020 NY Slip Op 03759, Second Dept 7-8-20

 

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