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Potocnik v Citibank, N.A. 2006 NY Slip Op 30663(U) April 19, 2006 Sup Ct, NY County Docket Number: 106409/05 Judge: Debra A. James Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: DEBRA A. JAME$
Justice

PART 59
Index No.:

GERDA POTOCNIK,

106409/05

Plaintiff,

-w-

Motion Date:

11/30/05
01

Motlon Seq. No.: CITIBANK, N.A., TRACY TENANTS CORPORATION, and MIRIAM WEISBECKER, Motion Cal. No.: Defendants.

The following papers, numbered 1 to 4 were read on this motion to consolidate.

I
Notice of MotionlOrder to Show Cause -Affidavits -Ex Answering Affidavits - Exhibits Replying Affidavits - Exhibits

PAPFRS

NUMBERED

Cross-Motlon:

o x -

-

- -

-

-

No--

Upon the foregoing papers,

The court shall GRANT plaintiff's motion to remove the
summary proceeding from the Civil Court of the City of New Y o r k

and to consolidate such proceeding w i t h the action at bar. Plaintiff seeks by Order to Show Cause to s t a y an eviction proceeding pending in the Housing Part of Civil Court, New York County under Index No.: 6 5 2 9 7 / 2 0 0 5 , and consolidate t h a t The court granted a

proceeding with the herein plenary action.

temporary restraining order staying that proceeding pending resolution of this motion and has adjourned this motion to allow

the parties to engage in settlement discussions.

As those

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discussions having not borne fruit, the court shall proceed to decide this motion. For twelve years, plaintiff was the rent-stabilized tenant

of the apartment that is the subject of this action.

In 1987,

plaintiff became the owner of the cooperative apartment, following her purchase of shares allocated to that apartment in a conversion. Defendants allege that plaintiff defaulted on her

maintenance payments to the corporation and loan payments to the bank. Eventually, the plaintiff's shares and lease were sold at

auction to defendant Miriam Weisbecker and the sale was closed on January 28, 2005.
..

Purchaser Weisbecker then initiated the B T Qc W g - 3L C I Y L L C Q

p e . -

t i ne-&resident i a Q

uL L ..

--

-

P l a i n t i f f argues that she never received notice from the

defendants of the foreclosure or of any sale of h e r apartment. She s t a t e s that due to such lack of notice, coupled with her responsibilities as caretaker of an invalid parent and her own numerous health problems that among other issues affected plaintiff's vision, she has been deprived of the opportunity to challenge the sale. Plaintiff commenced this action to void the

sale on the grounds of lack of notice and that the sale was not commercially reasonable.
She now moves to stay the Civil Court

summary proceeding, and to remove and consolidate it with the herein action.

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"Only where Civil C o u r t is without authority to grant the relief sought should the prosecution of a summary proceeding be stayed."
I

Scheff v 230 East 73rd Owners Corp., 203 AD2d 151, 152 The question of whether plaintiff received

(lat Dept 1994).

notice of the foreclosure cannot be summarily resolved against the tenant in the holdover proceeding, b r o u g h t by the new purchaser against her.

Zuk v Loy, 2002 NY Slip Op 50022(U), 2002
Nor does the Civil Court

WL 126256 (App Term, l J tDept 2002).

have authority to resolve the question of whether the c o o p e r a t i v e corporation has the right to divest plaintiff of h e r ownership in the apartment without any judicial determination of equitable

def-enses-anLcwntercla-..

v P Z k Towers Owner3

,

--

Corporation , 225 AD2d 742 (2d Dept 1996). On that basis, the
issuance of a stay of the Civil Court proceeding was warranted. Furthermore, the Civil Court action ought to be removed and consolidated with the instant action, as both cases share common questions of law and f a c t .

Mor re11

&

Companv v Richalan Rea l t v

Gorp, (93 AD 2d 736, 737 [la'Dept 19831) is illustrative.
There, plaintiff tenant commenced a p l e n a r y action for a
declaratory judgment and specific performance, asserting that it

had properly exercised a right of first refusal to purchase the
building under a lease. In reversing the trial court's denial of

a motion to consolidate that action with a summary holdover proceeding, the appellate court reasoned that an ultimate finding

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in the plenary action that tenant was entitled to purchase the
building would render the eviction proceeding academic.
So

t o o , here, the question whether plaintiff has been divested of

her shares upon proper notice would resolve defendant Weisbecker's proceeding for possession.
above, the declaration of the p a r t i e s '

In addition, as stated

rights under t h e

proprietary lease pursuant to the Uniform Commercial Code article

9 is only available in Supreme C o u r t . "Therefore, removal and
consolidation will permit the resolution of a l l issues in one

forum." See Morrell, Supra, a t 7 3 7 .
In that regard, the facts b e f o r e this court are
. - . -. . . ..

-.dstinguishahlc

fram. t h a s -m v.

( 3 AD3d 440,

441-442 [ l BDept 2 0 0 4 1 ) . t

In S t v a n ,

landlord's

plenary action for breach of contract and f r a u d

against the tenants was totally distinct from the landlord's
holdover proceeding for possession against those tenants, which

he subsequently brought in the Civil Court, the "proper forum for
resolving landlord-tenant issues.'' Finally, the mere fact that holdover proceeding will be delayed by the consolidation is n o t sufficient to bar such relief.
Amtors Tradinq Cor p . v Broadwav
&

56th Street A s s ~ c. I; ~

191 A D 2 d 2 1 2 (1st Dept 1993).
Accordingly, it is

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ORDERED that the motion is GRANTED and the above-captioned

action is consolidated in this Court with the summary proceeding entitled Weishec kes v P o t o c n i k ,
65297/2005)

(Civ Ct, NY County, Index No.:

under New Y o r k County Index No.: 106409/2005, and

shall bear the caption
GERDA POTOCNIK,

Plaintiff,

- v CITIBANK, N.A.; TRACY TENANTS CORPORATION and MIRIAM WEISBECKER, Defendants. and it is further
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Index No. : 1q6409,2 0 0 4

ORDERED that the C l e r k of the Civil Court of the City of New

York, N e w York County, shall transfer the papers on file under
',

Index No.: 6 5 2 9 7 / 2 0 0 5 ,
-

to the Clerk of Supreme Court, New York

County, upon service of a certified copy of this order and payment of the appropriate fee, if any; and it is further
ORDERED that the pleadings in the actions hereby

consolidated shall stand as the pleadings in the consolidated action for and against the respective parties; and it is further
ORDERED that upon service on the C l e r k of this Court of

a

copy of this order with notice of entry, t h e Clerk shall consolidate the p a p e r s in the actions hereby consolidated and

shall mark the records to reflect the consolidation; and it is
further
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ORDERED t h a t a copy of t h i s o r d e r with notice of entry shall

a l s o be s e r v e d upon t h e C l e r k of t h e Trial Support O f f i c e

(Room

158, 60 Centre Street), who i s h e r e b y d i r e c t e d t o m a r k the
court's records to reflect the consolidation.
ORDERED that the parties are directed to attend a

preliminary conference on June 6, 2006, at 9 : 3 0 A . M . ,

at the

Courthouse, I A S Part 5 9 , R o o m 1 2 5 4 , 111 C e n t r e S t r e e t , New York, N e w York.

This i s the decision and order of the court.
Dated:
A p r i l 19, 2006 ENTER:

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