Pereira v. Phillips

• Decision Date: 09 April 1992
• Citation: 154 Misc.2d 155,583 N.Y.S.2d 793
• Parties: John PEREIRA, Trustee, Petitioner(s), v. Veronica PHILLIPS, Respondent(s).
• Court: New York City Court

Page 793

583 N.Y.S.2d 793

154 Misc.2d 155

John PEREIRA, Trustee, Petitioner(s), v. Veronica PHILLIPS, Respondent(s).

Civil Court of the City of New York New York County, Housing Part 18S.

April 9, 1992.

William Whalen, for petitioner.

Ralph Accoo, for respondent.

RONNI D. BIRNBAUM, Judge.

Petitioner moves to strike respondent's counterclaims and to preclude for failure to provide a bill of particulars. Respondent opposes the motion.

Petitioner is a Trustee in Bankruptcy appointed pursuant to the order of the Hon. Burton R. Lifland, Bankruptcy Judge, Southern District New York. In or about the month of October, 1991, petitioner commenced the instant proceeding against respondent to recover rent allegedly unpaid since September, 1991, for Apt. No. 47 located at 274 West 140 Street, New York City, New York ("the premises"). Respondent served her answer in late October raising various affirmative defenses and interposing certain counterclaims. The latter included claims for: rent overcharge, malicious prosecution, breach of warranty of habitability retaliatory eviction and attorney's fees.

Petitioner now moves to strike respondent's counterclaims arguing suit against a Trustee in Bankruptcy is prohibited by state and federal law. Specifically, petitioner contends CPLR 3019(c) expressly prohibits suit against a Trustee; further, that regardless of state law, permission to bring suit must be obtained from the Bankruptcy Court which appointed petitioner before commencement of such action.

Suits commenced by a Trustee fall into two categories. First, those actions which are brought as successor to the debtor's interest included in the estate pursuant to 11 U.S.C. section 541. Second, those which are brought under one or more of the Trustee's avoiding powers. This proceeding clearly involves the former.

CPLR 3019(c) permits a counterclaim against a Trustee or nominal plaintiff, to the extent of the plaintiff's claim, providing that cause of action might have been interposed in an action brought by the person beneficially interested. Helman v. Dixon, 71 Misc.2d 1057, 338 N.Y.S.2d 139 (N.Y.C.Civ.Ct. Queens Co.1972).

Here, petitioner seeks to recover alleged unpaid rent. The suit is, therefore, brought by petitioner as successor to the debtor or landlord's interest. At least three of respondent's counterclaims are wholly proper because they could have been maintained against the person beneficially interested, that is, the landlord. Respondent's claims for rent overcharge and breach of warranty of habitability are properly interposed because a landlord is prohibited from collecting rent in excess of the regulated sum (Rent Stabilization Law section 26-512) and a landlord is obligated to maintain the premises in a habitable and safe condition [Park West Management Corp. v. Mitchell, 47 N.Y.2d 316, 418 N.Y.S.2d 310, 391 N.E.2d 1288 (1979) ]. Provided there is an attorney's fee clause in respondent's lease, a claim to recover said fees is also appropriate. RPL section 234. The only restriction to these three counterclaims is that any sum recovered by respondent may not exceed the sum sued for in the petition. Helman v. Dixon, supra; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac. section 3019.28.

Respondent's remaining counterclaims are deficient, but for reasons different from those proposed by petitioner. Malicious prosecution specifically requires a judgment in favor of respondent as a condition precedent to commencement of such an action. Lieberman v. Roadside 3 Hour Cleaners, Inc., 81 A.D.2d 635, 438 N.Y.S.2d 134 (2nd Dept 1981). There is no allegation in respondent's answer concerning a prior judgment against petitioner. Moreover, such a claim is wholly inappropriate to a summary proceeding. Coronet Properties Co. v. Lederer, N.Y.L.J., February 21 1986, p. 12, c. 2 (App.T.1st Dept.). Retaliatory eviction requires a landlord to terminate the landlord tenant relationship by service of a notice to quit. RPL section 223-b. Here, petitioner has not served any notice to quit on respondent. These two counterclaims are, therefore, without merit.

Petitioner's argument that permission of the appointing Bankruptcy Court is necessary to commencement of suit is similarly without merit.

The filing of a voluntary or involuntary petition under any chapter of the Bankruptcy Code automatically stays the commencement or continuation of any suit against the debtor. 11 U.S.C. section 362. Trustees may be sued, however, without leave of the appointing bankruptcy court, with respect to any of their acts or transactions in carrying on business connected with the property in their possession. 28 U.S.C. section 959(a). By allowing suits against Trustees without leave of court 28 U.S.C. section 959(a) provides an express statutory exception to the blanket stays inherent to the bankruptcy process. In re Baptist Medical Center, 80 B.R. 637 (B.Ct.E.D.N.Y.1987). Suits against a Trustee for acts done in his official capacity and within his authority as an officer of the court may not proceed in a nonappointing forum unless leave is obtained from the appointing forum. In re Baptist Medical Center, supra. A Trustee who is liquidating a bankrupt estate is not carrying on business and cannot be sued for mismanagement under 28 U.S.C. section 959(a) without leave of the appointing court. Melvin v. Klein, 49 Misc.2d 24, 266 N.Y.S.2d 533 (S.Ct. Onondaga Co.1965). Where, as here, the Trustee is attempting to collect unpaid rent he is not acting in his official capacity but as successor to the debtor's interest or in this case, the landlord's interest. Consequently, leave of the appointing court is unnecessary.

Petitioner's reliance on U.S. v. Dorigan, 236 F.Supp. 106 (E.D.N.Y.1964) is misplaced. Dorigan, supra, was...