Hotel New Yorker Pharmacy, Inc. v. New Yorker Hotel Corp.

• Decision Date: 12 December 1972
• Parties: The HOTEL NEW YORKER PHARMACY, INC., Plaintiff-Appellant, v. The NEW YORKER HOTEL CORP. et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 697

338 N.Y.S.2d 697

40 A.D.2d 967

The HOTEL NEW YORKER PHARMACY, INC., Plaintiff-Appellant, v. The NEW YORKER HOTEL CORP. et al., Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

Dec. 12, 1972.

I. Rothfarb, New York City, for plaintiff-appellant.

J. Colby, New York City, for defendants-respondents.

Before NUNEZ, J.P., and MURPHY, McNALLY, STEUER and CAPOZZOLI, JJ.

PER CURIAM.

Order, Supreme Court, New York County, entered on September 11, 1972, denying plaintiff's motion for consolidation or alternate relief, reversed, on the law, the facts and in the exercise of discretion, and motion to consolidate the summary proceeding pending in the Civil Court with this action granted. Appellant shall recover of respondents $40 costs and disbursements of this appeal.

In the answer of the defendants herein defendant, Polyclinic, counterclaimed for nonpayment of rent for the period beginning May 1972. Five months after plaintiff ceased paying rent and three months after it instituted this action, Polyclinic commenced a nonpayment summary proceeding in the Civil Court seeking relief similar to that sought by it in its counterclaim in this action. Hence, common questions of law and fact are raised in both proceedings. In addition to the fact that plaintiff's former landlord, a defendant herein, is not a party to the summary proceeding, it is far more significant to observe that, in this action, plaintiff seeks injunctive relief prohibiting defendants from allegedly further interfering with its pharmacy business and its rights under the lease between the parties. Plaintiff cannot obtain such affirmative equitable relief in the Civil Court (Rasch, New York Landlord & Tenant, 2d Ed. § 1238; N.Y. Civil Court Act § 209(b)). In this respect this case differs from Lun Far Company Inc., v. Aylesbury Assoc. et al., 40 A.D.2d 794, 338 N.Y.S.2d 84, recently decided by this Court, wherein this Court stated as follows:

'Unless it clearly appears that Relief sought is unavailable in the summary proceeding, its prosecution should not be stayed. * * *'. (emphasis added)

In the case at bar it clearly appears that the Civil Court does not have jurisdiction to decide all the issues here involved. The injunction which is sought by the plaintiff in the Supreme Court action is unavailable to it in the Civil Court because that court has no power to issue same.

All concur, except McNALLY and STEUER, JJ., who dissent in the following memorandum by McNALLY, J.:

I dissent and vote to affirm the order denying consolidation of the summary proceeding with the action for an injunction.

Plaintiff-appellant (Tenant) occupies a store in a building formerly owned by defendant-respondent, The New Yorker Hotel Corp. (New Yorker) which building was sold to defendant-respondent, French and Polyclinic Medical School and Health Center, Inc. (Landlord).

Plaintiff's action is for damages for interference with its business and to enjoin defendant from interfering with plaintiff's business and from discontinuing its hotel.

Landlord has commenced a summary...