Fontilme v. Atzmon, 2022-50272

CourtNew York Civil Court
Writing for the CourtCLINTON J. GUTHRIE, J.
PartiesEnock Fontilme, Petitioner, v. Lisa Atzmon, Respondent, and Department of Housing Preservation and Development, Respondent.
Decision Date15 April 2022
Docket NumberIndex HP 145/21,2022-50272

Enock Fontilme, Petitioner,

Lisa Atzmon, Respondent,

and Department of Housing Preservation and Development, Respondent.

No. 2022-50272

Index No. HP 145/21

Civil Court of the City of New York, Queens County

April 15, 2022

Unpublished Opinion

Attorney for Petitioner:

Jack L. Glasser, Esq.

Jack L. Glasser, P.C.

Attorney for Respondent Lisa Atzmon:

Robert Dembia, Esq.

Law Office of Robert Dembia, P.C.

Respondent: Department of Housing Preservation and Development,

Housing Litigation Bureau


Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondent Lisa Atzmon's motion, pursuant to Civil Court Act § 1001 and CPLR § 602, to consolidate the instant harassment case with a holdover proceeding, index number L & T 305160/21.

Papers Numbered

Notice of Motion & Affidavit/Affirmation Annexed 1 (NYSCEF No.59-60)

Affirmation in Opposition 2 (NYSCEF #61)

Upon the foregoing cited papers, the decision and order on respondent's motion to consolidate is as follows.


This harassment HP action was commenced by pro se order to show cause in March 2021. Both parties then retained counsel and respondent moved for summary judgment and dismissal, and to supplement and amend the answer. By Decision/Order dated July 29, 2021, Judge Maria Ressos denied the portion of respondent's motion seeking summary judgment and dismissal but granted respondent's request to supplement and amend the answer. Following several more adjournments, this court held a pre-trial conference with the attorneys for the parties on February 3, 2022. A trial date of March 10, 2022 was selected. Before this trial date, however, respondent made the instant motion to consolidate pursuant to Civil Court Act § 1001 and CPLR § 602. Petitioner, through counsel, submitted opposition papers (and asked for motion costs therein). The court heard argument on the motion on March 10, 2022 and reserved decision.


While Civil Court Act § 1001 merely provides that motion practice in the court is governed by the CPLR, except as the act "otherwise provides," CPLR § 602 specifically references consolidation. Pursuant to CPLR § 602(a), "[w]hen actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." Generally, a motion for consolidation under the statute "is addressed to the sound discretion of the court, and absent a showing of substantial prejudice by the party opposing the motion, consolidation is proper where there are common questions of law and fact." RCN Constr. Corp. v. Fleet Bank, N.A., 34 A.D.3d 776, 777 [2d Dept 2006]. Nonetheless, consolidation is not appropriate where the movant "fail[s] to specify the commonality in issues of law." Id. at 777. [1] A motion for consolidation should also be denied "where the actions involve dissimilar issues or disparate legal theories or where a joint trial would substantially prejudice an opposing party or pose a risk of rendering the litigation unwieldy." Cromwell v. CRP 482 Riverdale Ave., LLC, 163 A.D.3d 626, 627-628 [2d Dept 2018] [internal citations omitted].

In assessing the potential commonality of legal and factual questions raised in this harassment action and the holdover proceeding, the court first observes that the harassment claim is grounded in the Housing Maintenance Code, specifically NYC Admin. Code §§ 27-2005(d) and 27-2115(h)(1). The enactment of the harassment cause of action (via Local Law No. 7 in 2008) was "to address a perceived effort by landlords to empty rent-regulated apartments by harassing tenants into giving up their occupancy rights, using such tactics as 'commencing repeated baseless or frivolous court proceedings' against those tenants[.]" Aguaiza v. Vantage Props., LLC, 69 A.D.3d 422, 423 [1st Dept 2010]; see also Prometheus Realty Corp. v. City of New York, 80 A.D.3d 206, 209...

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