North Waterside Redevelopment Co., L.P. v. Febbraro

• Decision Date: 29 December 1998
• Citation: 682 N.Y.S.2d 202,256 AD2d 261
• Parties: 1998 N.Y. Slip Op. 11,465 NORTH WATERSIDE REDEVELOPMENT COMPANY, L.P., etc., Plaintiff-Appellant-Respondent, v. Judith FEBBRARO, Defendant-Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 202

682 N.Y.S.2d 202

1998 N.Y. Slip Op. 11,465

NORTH WATERSIDE REDEVELOPMENT COMPANY, L.P., etc Plaintiff-Appellant-Respondent, v. Judith FEBBRARO, Defendant-Respondent-Appellant.

Supreme Court, Appellate Division First Department.

Dec. 29, 1998.

Stephen Sussman, for Plaintiff-Appellant-Respondent.

Gail R. Rich, for Defendant-Respondent-Appellant.

MILONAS, J.P., WILLIAMS, ANDRIAS and SAXE, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Paula Omansky, J.), entered September 10, 1997, which denied plaintiff's motion for summary judgment and dismissed the action without prejudice, and did not grant defendant's motion for attorney's fees, unanimously modified, on the law, to the extent of reinstating the complaint, and otherwise affirmed, without costs.

The IAS court dismissed without prejudice plaintiff's complaint seeking declaratory and injunctive relief relating to defendant-tenant's violation of the no-pet provision of her lease, finding that the appropriate course for plaintiff to pursue was to bring a proceeding in Civil Court for possession of tenant's apartment. In reaching its decision, the court cited at length from Cox v. J.D. Realty Associates, 217 A.D.2d 179, 637 N.Y.S.2d 27, where this Court stated "[i]n the absence of any showing that the Civil Court is unable to afford complete relief to plaintiffs, there is no basis for the application to Supreme Court for declaratory and equitable relief" (at 183, 637 N.Y.S.2d 27). The IAS court here reasoned that because the "net result is the same" regardless of where the action was pursued--i.e., in either court, defendant will have to choose between her apartment and her dog--the action could just as well be resolved in Civil Court and "a Supreme Court order is not required." We find to the contrary that plaintiff was entitled to bring this action in Supreme Court and therefore reinstate the complaint.

As discussed in Cox, Civil Court is generally the preferred forum for landlord-tenant disputes. In Cox, the parties' dispute was over succession rights and possession of the premises, issues that clearly can be decided by Civil Court. In the instant case, however, Civil Court cannot afford "complete relief" to plaintiff, which seeks equitable relief available only in Supreme Court; the limited injunctive and restraining authority of Civil Court does not extend to the matter in dispute (see, Civil Court Act § 203[o] ).

Indeed, the circumstances of the instant matter are almost identical to those of Trump Village Section 3 v. Sinrod, 219 A.D.2d 590, 631 N.Y.S.2d 188, where plaintiff-landlord sought both a declaratory judgment and an injunction regarding a tenant's violation of a no-pet clause. The Second Department concluded that "[s]ince the New York City Civil Court cannot grant the injunctive relief sought by the plaintiff, the action was properly commenced in the Supreme Court" (219 A.D.2d, at 592, 631 N.Y.S.2d 188), and this reasoning is equally applicable in the matter before us. While defen...