51 W. 86th St. Assoc. LLCv.Fontana

Appellate Term of the Supreme Court of New York, First DepartmentSep 16, 2010
570544/09 (N.Y. Misc. 2010)
570544/092010 N.Y. Slip Op. 51602

570544/09.

Decided September 16, 2010.

Tenants, as limited by their briefs, appeal from those portions of an order of the Civil Court of the City of New York, New York County (Marcia J. Sikowitz, J.), dated January 21, 2009, which denied their motion for summary judgment dismissing the holdover petition and granted cross motions of landlord and respondent Degala for summary judgment, awarding landlord possession and use and occupancy and respondent Degala the principal sum of $78,268.96, and stayed entry of judgment pending determination of the amount of reasonable attorneys' fees owed to landlord.

Order (Marcia J. Sikowitz, J.), dated January 21, 2009, insofar as appealed from, modified by (1) vacating those portions of the order granting respondent Degala's cross motion for summary judgment on her cross claim against respondents-tenants, and granting summary judgment to Degala dismissing tenant's cross claims sounding in tort, and (2) dismissing, without prejudice, Degala's cross claim against tenants, and tenants' cross claims against Degala sounding in tort, and the matter remanded for entry of an amended judgment in accordance herewith; as modified, order affirmed, with $10 costs payable by tenants to landlord.

PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ.


Petitioner-landlord made a prima facie showing of entitlement to judgment as a matter of law on its petition in this holdover summary proceeding seeking to recover possession of the rent stabilized apartment premises on the ground that respondents-tenants subleased the unit, without landlord's approval, and engaged in profiteering against the subtenant, respondent Degala ( see Rent Stabilization Code [ 9 NYCRR] §§ 2524.3[h], 2525.6). In opposition, tenants failed to raise a triable issue with respect to whether Degala was tenants' roommate, as opposed to a subtenant ( cf. First Hudson Capital, LLC v Seaborn , 54 AD3d 251 , appeal withdrawn 11 NY3d 784 and appeal dismissed 11 NY3d 894). The record establishes that tenants transferred part of their estate to Degala for consideration, i.e., they leased their right to occupy the subject apartment to Degala ( see 520 E. 81st St. Assoc. v Roughton-Hester, 157 AD2d 199, 201; Finkelstein and Ferrara, Landlord and Tenant Practice in New York § 3:39 [West's NY Prac Series, vol F, 2009]), and tenants and Degala never simultaneously occupied the apartment ( see 305 E. 72nd Street Assoc. v Menocal, NYLJ, Dec. 29, 1986, at 5, col 1 [App Term, 1st Dept]). Therefore, as Civil Court properly concluded, Degala was a subtenant.

Moreover, we reject tenants' contention that landlord was required to serve upon them a notice to cure and afford them an opportunity to cure the unauthorized and illegal profiteering sublet ( see 643 Realty LLC v Thadal , 15 Misc 3d 131[A], 2007 NY Slip Op 50672[U]; compare Rent Stabilization Code [ 9 NYCRR] § 2524.3[h], with § 2524.3[a]; see generally BLF Realty Holding Corp. v Kasher, 299 AD2d 87, 91).

Civil Court should not have adjudicated Degala's cross claim against tenants seeking to recover the rent overcharge and related treble damages. By that cross claim, Degala sought to recover approximately $23,000 in compensatory damages and, after the trebling of those damages, a total of approximately $69,000 in damages. Since Degala asserted a single cross claim beyond the monetary jurisdiction of the Civil Court — $25,000 — the court lacked subject matter jurisdiction over that claim ( see 1443 York Ave. Realty Co. v Ronning , 12 Misc 3d 142 [A], 2006 NY Slip Op 51401[U]; see also Herbert v Jerome , 14 Misc 3d 141 [A], 2007 NY Slip Op 50351[U]). We note in this connection that, while Civil Court has subject matter jurisdiction to hear and adjudicate counterclaims without regard to the amount sought (CCA 208[b], 211; see RPAPL 743), it has no similar jurisdiction with respect to cross claims ( see 125 Church St. Dev. Co. v Grassfield, 170 Misc 2d 31; Scherer Fisher, Residential Landlord-Tenant Law in NY §§ 7:56, 10:11 [2009 ed]; Siegel, NY Prac § 19 [4th ed]). For similar reasons, Civil Court lacked subject matter jurisdiction over tenants' cross claims sounding in tort against Degala — each of which sought damages in excess of Civil Court's monetary jurisdiction. Therefore, we vacate those portions of the order addressing the merits of Degala's and tenants' respective cross claims, and dismiss said claims without prejudice ( see CPLR 205; see generally Bing v Fairfield Presidential Mgt. Corp. , 5 Misc 3d 130[A], 2004 NY Slip Op 51297[U]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.