Balaban v. Phillips

• Decision Date: 07 March 1988
• Citation: 526 N.Y.S.2d 347,138 Misc.2d 990
• Parties: Howard BALABAN, Trustee, et al., Petitioners-Landlord, v. Jeanne-Marie PHILLIPS, et al., Respondents-Tenants.
• Court: New York City Court

Page 347

526 N.Y.S.2d 347

138 Misc.2d 990

Howard BALABAN, Trustee, et al., Petitioners-Landlord, v. Jeanne-Marie PHILLIPS, et al., Respondents-Tenants.

Civil Court of the City of New York,

New York County, Special Term,

Part 18.

March 7, 1988.

Alvin H. Heller, New York City, for petitioners-landlord.

Pamela Phillips, New York City, for respondent-tenant Phillips.

Alan J. Goldberg, New York City, for respondent-tenant Grieve.

JAY STUART DANKBERG, Judge.

"Jurisdiction exists that rights may be maintained. Rights are not maintained that jurisdiction may exist" ( Berkovitz v. Arbib & Houlberg, Inc., 230 N.Y. 261, 274 [1921, Cardozo, J.] ).

This lawsuit is a holdover summary proceeding brought to evict three named respondents. It is alleged that respondent Jeanne-Marie Phillips--the leaseholding tenant--unlawfully sublet or assigned the subject apartment to the remaining respondents, Pamela Phillips (her sister) and Laurie Grieve.

In their answer, Pamela and Jeanne-Marie Phillips assert a cross-claim against co-respondent Laurie Grieve in which her eviction and damages for rent arrears and utility payments are sought. Respondent Grieve, in turn, pleads a cross-claim against co-respondents Phillips for recovery of damages for rent overcharges.

The subject of cross-claims in a summary proceeding is the rather simple field upon which the present litigants join in battle (by way of motions seeking summary judgment and other relief). Yet it is a joust which reveals differences between two respected legal commentators in discussions regarding the interrelationship between CPLR 402 and 3011.

ISSUES

The main issue in this matter, upon which there is surprisingly no reported case in New York, is whether a cross-claim seeking the eviction of a co-respondent (or any other relief) may be interposed in a summary proceeding.

Related questions presented include whether a party needs prior court permission to properly plead a cross-claim. Also to be determined is whether failure to have obtained such permission is fatal to the pleader.

Although antecedents date back at least to 1864, these related issues have rarely been discussed in reported decisions involving "special proceedings" (CPLR Article 4--of which "summary proceedings" are but one type). These ancillary issues have never been determined within the context of a reported summary proceeding.

This is a determination, therefore, of first impression in several respects.

DISCUSSION

Article 4 of the CPLR governs special proceedings in general and provides a uniform procedure for areas not covered by the specific special proceeding statutes (here, Article 7 of the Real Property Actions and Proceedings Law).

CPLR 402 provides that: "there shall be a petition, which shall comply with the requirements for a complaint in an action, and an answer where there is an adverse party. There shall be a reply to a counterclaim denominated as such and there may be a reply to new matter in the answer in any case. The court may permit such other pleadings as are authorized in an action upon such terms as it may specify" (emphasis supplied).

On the other hand, CPLR 3011 provides, in uncomplicated fashion, that "an answer may include a ... cross-claim against a defendant."

Is prior court approval required in order to properly plead a cross-claim in a summary--or any other type of special--proceeding?

It is undisputed in this case that no such court permission was either sought or obtained for the cross-claims asserted. Here, the respective cross-claims of the three co-respondents have been interposed and served in general compliance with CPLR 3011.

Of course, in regular plenary actions, since a cross-claim may be included in an answer as a matter of right (pursuant to CPLR 3011), no prospective pleading permission is preliminarily prescribed.

But what about in a summary--or other special--proceeding?

In this regard, Professor David Siegel indicates that in a special proceeding "the answer may contain a counterclaim, and presumably it may contain a cross-claim if there should be multiple respondents.... Any further pleadings require court leave just as in an action [citing CPLR 402, 3011]" (emphasis added) (Siegel, New York Practice, sec. 552, p. 769-770; but see id. sec. 577, p. 812). Reference to no statutory, case law or other authority is made for the clause that begins "presumably it may contain a cross-claim".

Weinstein-Korn-Miller disagree. At paragraph 3019.16 of 3 New York Civil Practice, it is stated that "cross-claims may be asserted in special proceedings only with the permission of the court [citing a case]. See CPLR 402. Judicial control over cross-claims is necessary in order to assure that the special proceeding is determined as expeditiously as possible and not detained or proliferated by marginal or unrelated claims. Under prior law, the cross-claim was held inapplicable to special proceedings [citing cases] and the grant of judicial power to permit a cross-claim therefore constitutes a liberalization of former practice" (emphasis supplied).

Reading the two comments together results in a muddle of a procedural morass (what Stan Laurel and Oliver Hardy would call "a fine mess").

Eminent jurist Judge (now Justice) Felice K. Shea noted: "the law with regard to service of cross claims is less than clear and should be applied with a view to effectuating common sense results and ... considerations of justice ..." ( Meckley v. Hertz Corp., 88 Misc.2d 605, 606, 388 N.Y.S.2d 555 [Civil Ct., NY Co., 1976] ).

The Meckley decision (supra) was in the context of a plenary action. The instant lawsuit is a special summary proceeding--litigation "governed entirely by statute.... [T]here must be strict compliance with the statutory requirements.... The essentials of the petition and notice of petition are specifically regulated and strictly construed" ( Goldman Bros. v. Forester, 62 Misc.2d 812, 814-815, 309 N.Y.S.2d 694 [Civil Ct., NY Co., 1970, Myers, J.] ).

Accordingly, to this Court it seems the better view is that expressed by Weinstein-Korn-Miller. After all, it has been held that "the better practice requires court permission in view of the summary nature of a special proceeding" ( Michigan Assoc. v. Emigrant Savings Bank, 74 Misc.2d 495, 503, 345 N.Y.S.2d 329 [Civil Ct., Queens Co., 1973, C. Cohen, J.]; see also 1025 Fifth Avenue, Inc. v. Marymount School of New York, 123 Misc.2d 756, 760, 763, 475 N.Y.S.2d 182 [Sup.Ct., NY Co., 1983, Greenfield, J.] ).

Moreover, "the Legislature has the power to attach a condition to the maintenance of any action and the requirement that a [judicial officer] shall grant leave is one such condition" ( Wolfe v. Bellizzi, 58 Misc.2d 773, 775, 296 N.Y.S.2d 860 [Sup.Ct., Schenectady Co., 1969, O'Brien, J.], aff'd sub nom. Bremer v. Bellizzi, 37 A.D.2d 1041, 325 N.Y.S.2d 919 [3rd Dept., 1971] ).

If such condition precedent exists (as here), an allegation of such judicial permission must be pleaded in the petition/complaint and compliance proven upon the trial ( Reining v. City of Buffalo, 102 N.Y. 308, 6 N.E. 792 [1886]; Wolfe v. Bellizzi, supra; Graham v. Scripture, 26 How.Prac. 501 [Sup.Ct., St. Lawrence Co., 1864] ).

Since the respective respondents in this summary proceeding have interposed cross-claims without prior leave of court, they have done so in violation of CPLR 402. This circumstance alone--if not in the additional interest of preserving petitioners' right to a summary disposition of the holdover proceeding-in-chief--compels dismissal of the cross-claims.

However, in view of the authority contained in CPLR 402 for the court to "permit such other pleadings as are authorized in an action upon such terms as it may specify", the question remains whether interpretation of such language may permit interposition in a summary proceeding of a cross-claim seeking eviction of a co-respondent.

There is no statutory or prior case law prohibition to the granting of leave to plead a cross-claim in the manner already interposed by respondents Phillips. Since CPLR 402 authorizes the court to "permit such other pleadings as are authorized in an action " (emphasis added), it might be argued that a cross-claim for relief obtainable only by special proceeding would fall outside the statutory grant of authority. While somewhat persuasive, this Court must also remain mindful that, pursuant to CPLR 105(b), "the word 'action' includes a special proceeding".

A look to the Legislative intent underlying CPLR 402 yields helpful yet, unfortunately, inconclusive guidance. The Sixth Report of the Official Reports to the Legislature for the section (6th Report Leg.Doc. [1962] No. 8, p. 127) proposed in a preliminary draft: "there could be such other pleadings as are authorized in an action in the parties' discretion." This language was changed in the final draft to require permission of the court for any pleading after an answer and reply.

The theory of special proceedings is that they shall proceed as expeditiously as possible with control by the court at a very early stage (see this Court's decision in Manhattan Plaza, Inc. v. Snyder, 107 Misc.2d 470, 477, 435 N.Y.S.2d 449 [Civil Ct., NY Co., 1980] ). "Impleader and cross-claims therefore should be controlled by the court to prevent any unnecessary delay and confusion" (Legislative Studies and Reports, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 402, p. 485).

In the absence of authority to the contrary, and in light of the broad power granted in RPAPL 747(1) ("the court shall direct that a final judgment be entered determining the rights of the parties"), the Civil Court possesses subject matter jurisdiction in a summary proceeding regarding a cross-claim which seeks the eviction of a co-respondent.

However, in view of the "legislative intent" considerations, supra, this Court concludes that cross-claims seeking a possessory judgment should rarely be permitted in a holdover summary...