Opinion
April 21, 1994
Appeal from the Supreme Court, New York County (Robert D. Lippmann, J.).
Included among the numerous claims asserted by plaintiffs-respondents (tenants) in their Supreme Court tort action is a cognizable defense, based upon a breach of the statutory warranty of habitability (Real Property Law § 235-b), to defendant-appellant's summary proceedings for nonpayment of rent pending in Civil Court. However, there is "a strong rule against staying a summary proceeding, or removing it, such as for purposes of a consolidation or joint trial with some proceeding in the supreme court or some other superior court" (Siegel, NY Prac § 577, at 909 [2d ed]).
This Court has consistently adhered to the rule stated by Professor Siegel (e.g., Cohen v Goldfein, 100 A.D.2d 795; Lun Far Co. v Aylesbury Assocs., 40 A.D.2d 794). Only where Civil Court is without authority to grant the relief sought should the prosecution of a summary proceeding be stayed (Lun Far Co. v Aylesbury Assocs., supra; Glen Briar Co. v Silberman, 129 Misc.2d 439, 442), notwithstanding that the Supreme Court action may have preceded commencement of the summary proceeding (Cohen v Goldfein, supra, at 797). Nor is consolidation appropriate where, as here, there are no common questions of law and fact because the property damage alleged in the tort action involves a time period prior to that for which rent arrears are sought (Earbert Rest. v Little Luxuries, 99 A.D.2d 734; Schroder Bank Trust Co. v South Ferry Bldg. Co., 88 A.D.2d 570).
Plaintiffs-tenants do not contend that Civil Court is incapable of determining whether the conditions in their apartment constitute a violation of the warranty of habitability and, thus, they have not established the necessity for consolidation (Parksouth Dental Group v East Riv. Realty, 122 A.D.2d 708; Kanter v East 62nd St. Assocs., 111 A.D.2d 26; see also, Mannis v Jillandrea Realty Co., 94 A.D.2d 676). Nor do plaintiffs set forth any basis for departure from the rule established in this Department by the foregoing decisions.
Concur — Carro, J.P., Wallach, Ross, Rubin and Williams, JJ.