Motion by the defendant, pursuant to CPLR § 3211(a)(5), for dismissal of the complaint in the within action brought by his former landlord to recover rental arrears, is granted in part only to the extent that the plaintiff is precluded from recovering alleged rent arrears accrued from June 1, 2004 through September 30, 2004, as fully set forth below.

The defendant argues that a judgment of dismissal, after trial by an arbitrator on April 25, 2005, of an action brought by plaintiff herein in Small Claims under SCQ # 8419/04 to recover $ 5,000, the jurisdictional limit under New York City Civil Court Act (NYCCCA) §1801 for non-payment of rent accruing fromJune 1, 2004, has binding effect as res judicata upon the within action. Plaintiff, in his opposition papers, contends that the initial arbitrator's award and judgment thereupon which apparently awarded the claimant (plaintiff herein) a judgment of $1,200, plus interest, is the valid judgment, rather than the "corrected" judgment of dismissal by the very same arbitrator.

A review of the litigation history in this matter, including a prior residential non-payment summary proceeding by plaintiff herein, as well as the prior small claims action, reveals the following facts.

Plaintiff had commenced a non-payment proceeding under L &T index# 75549/04 alleging, in his petition, that the defendant, as respondent tenant, owed rent arrears, at the monthly rate of $1,200.00, for the period accruing from June 1, 2004 through September 30, 2004, together with legal fees. Upon defendant's default in answering or appearing, plaintiff was granted a judgment of possession only, with execution of the warrant stayed to October 28, 2004. Subsequently, plaintiff brought the above captioned small claims action, which he filed on December 7, 2004. After several adjournments from the original trial date of January 24, 2005, the matter proceeded to trial before an arbitrator on April 25, 2005. The record, to wit, the case record card and attached judgments and orders, includes notations as to the " corrected" judgment of [*2]dismissal being sent to both sides on May 18, 2005 and claimant's three orders to show cause during June, 2005, to vacate the judgment of dismissal being denied. It is clear, therefore, that contrary to plaintiff's contention, his small claims action for rent arrears was dismissed. The court further notes that a small claims action commenced by the defendant herein against the former landlord, under SCQ # 445/05, to recover for allegedly stolen property, was also tried before the same arbitrator, resulting in a judgment for the former tenant (the claimant therein). Subsequently, the former landlord brought the within civil action to recover rent arrears from June, 2004 through December, 2004 and legal fees.

New York City Civil Court Act § 1808 provides, in pertinent part, that " [A] judgment obtained under this article shall not be deemed an adjudication of any fact at issue or found therein in any other action or court***".

The Appellate Term, Second Department, has explained the limitation of this provision by the following language, quoting from Siegel, New York Practice § 585 ( 2d ed), " the provision was not intended to divest the small claims judgment of its "claim preclusion" effect, which is the more technical meaning of "res judicata", but rather of its "collateral estoppel" or " issue preclusion" use'. If plaintiff loses the small claims suit to defendant, the loss precludes plaintiff from suing defendant for the same cause again even in the regular part of the court' " ( Omara -v- Polise, 163 Misc 2nd 989, at 990 [ App. Term, 2nd Dept. 1995] ). Recent appellate cases have followed the Omara holding ( see Friedenberg -v- Tri Realty Management, 2003 WL 21355446 [ App. Term, 2nd & 11th Jud. Dists. 2003]; Lai -v- Kuo, 2003 WL 21911118 [ App. Term, 2nd & 11th Jud. Dists. 2003]; Beizer -v- Malhotra, 2002 WL 859591 [ App. Term, 9th & 10th Jud. Dists. 2002]). Other appellate decisions denying dismissal on small claims res judicata grounds( Borg -v- Linnenkohl, 4 Misc 3rd 132 (A) [ App. Term, 2nd & 11th Jud. Dists. 2004]; Molska -v- Garfield, 2 AD 3rd 510 [ 2nd Dept. 2003] ) are, nonetheless, not inconsistent, as the civil actions therein allege different claims or causes of action than those in the prior small claims actions.

The small claims action tried on April 25, 2005 sought to recover $ 5,000 for the four months rent arrears ( to wit, the months of June, July, August and September of 2004- totalling $ 4,800) sued for in the prior nonpayment proceeding, for which plaintiff as petitioner had obtained a default possessory judgment. Such claim, for those four months, was dismissed. Based on the above-cited case law, plaintiff cannot sue defendant again to recover the alleged back rent for those four months. However, plaintiff, in the action at bar, seeks to recover for claimed arrears allegedly accruing through December 31, 2004. Therefore, the court finds that plaintiff may still proceed with his current civil action to the extent of alleged arrears accruing from October 1, 2004 through December 31, 2004.

In this regard, the defendant's attorney's affirmation in reply raises the argument that plaintiff's assertion in his opposition papers of an oral one year rental agreement runs afoul of the Statute of Frauds under G.O.L. § 5-703. Be that as it may, even if defendant had therefore been only a month- month tenant, he would still be obligated to pay use and occupancy for those months in which he occupied the premises. Though the dismissal of plaintiff landlord's small claims action for rent arrears through September, 2004 is [*3]binding, the record contains no finding of fact disclosing the basis for the arbitrator's decision and, even if it did, such decision is not binding as to any finding of fact or issue litigated therein. The court further notes that defendant, in his reply papers, alleges that he had leased another apartment starting in June 22, 2004. However, in support of this allegation, he submits a copy of a purported lease for a term of June 22, 2004 to July 31, 2004 for premises which, as shown by a certified copy of a deed dated April 16, 1999 and contained in plaintiff's surreply papers, are, or at least, had been owned by defendant's wife. Therefore, parenthetically, there clearly exists a factual issue, which may be litigated, as to the length of time defendant occupied plaintiff's premises after September 30, 2004 or whether there are any grounds for the landlord to recover rent for the period from October1, 2004 through December 31, 2004.

Accordingly, the motion by the defendant for dismissal of the complaint in the within action is granted to the extent of any claimed arrears accrued through September 30, 2004; however, the motion is otherwise denied as to the balance of plaintiff's claims.

January 30, 2007

Bernice D. Siegal

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DateJudge, Civil Court