Metropolitan Life Ins. Co. v. Carroll

• Decision Date: 28 May 1964
• Citation: 43 Misc.2d 639,251 N.Y.S.2d 693
• Parties: METROPOLITAN LIFE INSURANCE COMPANY, Landlord-Appellant, v. William J. CARROLL and Mary J. Carroll, Tenants-Respondents.
• Court: New York Supreme Court — Appellate Term

Page 693

251 N.Y.S.2d 693

43 Misc.2d 639

METROPOLITAN LIFE INSURANCE COMPANY, Landlord-Appellant, v. William J. CARROLL and Mary J. Carroll, Tenants-Respondents.

Supreme Court, Appellate Term, First Department.

May 28, 1964.

Carb, Luria, Glassner & Cook, New York City, Bernard B. Sumliner, New York City, of counsel, for appellant.

No one appearing for respondents.

Before TILZER, J. P., and HOFSTADTER and HECHT, JJ.

GEORGE TILZER, Justice Presiding.

A holdover summary proceeding was instituted in the court below upon the ground that the tenants held over and continued in possession of Apartment MD at 280 First Avenue, without the permission of the landlord after the expiration of the tenants' term . The tenants interposed an answer which, in addition to demanding a trial by jury, contained an affirmative defense stating in substance that the landlord refused to renew the lease made between the parties and terminated the tenancy solely upon the ground that the tenants have children and that this alleged unsanctioned and unauthorized discrimination against children is in violation of law.

The landlord thereupon brought on a motion to grant it summary judgment pursuant to Rule 3212 CPLR; to dismiss the affirmative defense pursuant to Rule 3211(b) CPLR; and to vacate the tenants' demand for trial by jury. The court below denied the motion in its entirety holding (1) that Rule 3212 does not lie in a summary proceeding; (2) that the defense moved against pursuant to Rule 3211(b) should stand and that the sufficiency of such defense should be explored at the trial; and (3) that the tenants were entitled to a jury trial. In denying summary judgment the Judge below was of the opinion that the Legislature in enacting the CPLR and the Real Property Actions and Proceedings Law did not contemplate that summary proceedings would be included under Rule 3212; that summary proceedings are summary in nature and that Section 745 of the Real Property Actions and Proceedings Law 'specifically states that the court must set a proceeding down for trial not more than 10 days after issue has been joined, except by consent of the parties'; and that 'for that matter motions for judgment on the pleadings and other procedural remedies are not applicable to a summary proceeding .'

The opinion of the court below that summary judgment does not lie is, of course, entitled to weight. Such belief, moreover, is the generally accepted one, reiterated by the courts because of the initial limitations of the summary judgment rule as well as by reason of the statutory nature of the summary proceeding. It was felt that the summary proceeding remedy must be strictly followed and that there could be no departure from the mode of trial and disposition of issues provided by the statute. The summary nature of the proceeding, it was held, precluded the interposition of any procedural devices which might be contrary to the statutory scheme or result in delay in pursuing the remedy.

But while the statutory requirements had to be met in the prosecution of the proceeding, it would seem that we lost sight of the evil which gave rise to the remedy and of the design of the statute to afford a 'landlord with a simple, expeditious, and inexpensive means of regaining possession of his premises' (Reich v. Cochran, 201 N.Y. 450, 454, 94 N.E. 1080, 1081). We failed to heed the admonition of the Court of Appeals that summary proceedings were not to 'be so hypercritically restricted as to destroy the very remedy which they are designed to afford.' (Reich v. Cochran, supra, at p. 455, 94 N.E. at p. 1082).

Not that some courts did not appreciate that a summary proceeding should not be insulated from those procedural tools invented for the purpose of attaining 'more efficient trials.' (42 West 15th Street Corp. v. Friedman, 208 Misc. 123, 125, 143 N.Y.S.2d 159, 160, Appellate Term, First Department, June 1955). Judge Hofstadter wrote in the case cited, in overruling the Municipal Court, that neither an examination before trial nor a demand for a bill of particulars 'is inherently hostile to the nature of this summary proceeding.' (208 Misc. p. 125, 143 N.Y.S.2d p. 161). Other courts, distinguishing between a summary proceeding and a summary proceeding-action, held that the practice motions were not applicable to the former but were applicable to the latter (cf. Matter of Flobar Realty Corp. v. Rodin, 28 Misc.2d 938, 209 N.Y.S.2d 755 [1961] [Wahl, J.]). Where, in other cases, it appeared that there were no questions of fact in issue, while paying lip service to the principle that summary judgment would not lie in a summary proceeding, the same result was achieved by treating the motion as made pursuant to other provisions of the Rules of Civil Practice (cf . Stewart v. Strauss, 11 Misc.2d 433, 177 N.Y.S.2d 863 [1958] [Henry Silverman, J.]). In the Third Department, on the other hand, the landlord's motion for summary judgment was treated on the merits; there being questions of fact, the motion was denied (Graubart v. Spira, 22 Misc.2d 387, 198 N.Y.S.2d 398 [1960] [Wemple, J.]).

Are we not hypocritical in holding that a motion for summary judgment is not applicable to a summary proceeding? It would seem that since the purpose of the summary proceeding is to provide a means for an expeditious determination, anything which will afford even speedier justice is not opposed to the philosophy of the summary proceeding. The summary judgment procedure has been in existence in England for over a century. In New York it has had a vigorous life of some 40 years and its benefits are well recognized. We are encouraged, moreover, to exercise the power in the future without timidity to the end that justice will be promoted, our calendars shortened and legitimate claimants afforded an early day in court. (DiSabato v. Soffes, 9 A.D.2d 297, 193 N.Y.S.2d 184.)

Are we prohibited nevertheless from applying the summary judgment motion to summary proceedings? The answer, is we believe, that there is no inhibition whether the ban be pressed on constitutional, statutory, policy, or other grounds. The proceeding is not sacrosanct, immune from all change. So long as jurisdiction is obtained and provided, where required, that the ultimate determination of issues of fact by the jury be not interfered with, changes in forms of practice and procedure may be adopted to the end that the remedy will fulfill its purpose of providing 'the landlord with a simple, expeditious, and inexpensive means of regaining possession of its premises.' (Reich v. Cochran, supra, 201 N.Y. 450, at p. 454, 94 N.E. 1080, at p. 1081.)

A summary proceeding, moreover, is embraced within the scope of the summary judgment procedure by virtue of the changes affecting the proceeding as well as by the expansion of the motion to any action except matrimonial actions (Real Property Actions and Proceedings Law, § 745; CPLR § 103(b), § 105(b), Rule 409, § 410, Rule 3212). Particular note must be made of the language of section 745 Real Property Actions and Proceedings Law (art. 7 Real Property Actions and Proceedings Law repl...