The following papers numbered 1 to 17 were read on this motion by the plaintiff/tenant for an order removing a Landlord-Tenant non-payment proceeding filed in Queens County Civil Court to the Supreme Court and consolidating said Civil Court matter with the above entitled action in which plaintiff seeks an order directing the defendant/building owner to sign all forms required by the City of New York to permit plaintiff to complete renovations in the leased premises:

Papers

Numbered

Order to Show Cause-Affidavits-Exhibits................1 - 7 Affirmation in Opposition-Affidavits-Exhibits..........8 - 13

Reply Affirmation.....................................14 - 17

This is an action commenced by the plaintiff, Fairytale Daycare, Inc., in August 2013 for breach of contract, partial eviction and violation of implied covenant of fair dealing against the defendants for failing to cooperate with plaintiff in signing documents required to permit the plaintiff to complete [*2]renovations in the leased premises and obtain the final permits and licenses necessary to allow plaintiff's daycare center to open for business, and for punitive damages and sanctions.

Plaintiff now moves for an order, pursuant to CPLR 602(b), to remove a nonpayment eviction proceeding proceeding entitled Ilya Mittelman against Fairy Tale Day Care, Inc. pending in the Civil Court, Queens County, under Index No. 76438/13, to the Supreme Court, Queens County, and to consolidate that proceeding with this action.

According to the affidavits of Maria Isakov, the President of Fairytale Daycare, Inc., and the affidavit of Ilya Mittelman owner of the subject properties, the plaintiff entered into a lease agreement with the defendant owners of the subject adjoining buildings located at 99-13 and 99-17 63rd Road, Rego Park, New York, for the purpose of opening and operating a daycare center. Both addresses comprise a single structure providing approximately 13,000 square feet of office space. Plaintiff signed two leases one for space in each building on October 15, 2012 and March 1, 2013, respectively. At the time the leases were signed with Fairytale, the properties had been leased to five separate healthcare providers. When the plaintiff and defendants reached an agreement to lease the building for a daycare center, the landlord promised that the healthcare providers leases would be terminated and they would be relocated during the time the plaintiff's renovations were taking place. All of the healthcare providers were relocated with the exception of Dr. Nina Zilberman who refused to move out. Although the plaintiff undertook extensive renovations it could not complete the construction or open the daycare center due to the failure of Dr. Zilberman to leave the premises in a timely manner.

As a result of the failure of Dr. Zilberman to terminate her lease, the plaintiff determined that it was partially evicted from the building and deprived of possesion of the space which it had leased. Plaintiff was advised by its counsel that under the circumstances its obligation to continue to pay rent was abated. Plaintiff therefore stopped paying the full amount of rent for June, July, August, September, October and November 2013. Further, plaintiff contends that the the landlord's cooperation is required to sign certain documents for the Department of Buildings and the NYC Fire Department in order for Fairytale to obtain certain permits necessary to complete the renovations and to operate the business. Plaintiff contends that the failure of the landlord to sign the documents prevents it from completing the work needed to open the business. [*3]

Due to the plaintiff's failure to pay its rent, defendant Mittelman commenced a non-payment proceeding in Queens County Civil Court against the plaintiff for outstanding rent under Index No. 76438/13 seeking a final order of eviction. Plaintiff now seeks to remove the non-payment proceeding to the Supreme Court to be joined with the instant proceeding which seeks an order directing the plaintiff to cooperate in signing the required documents so the plaintiff can open its daycare center. Plaintiff contends that pursuant to CPLR 602 the two actions should be joined in Supreme Court as there are common questions of law and fact.

In opposition, Mr. Mittelman states that Dr. Zilberman relocated in October 2013 however, Fairytale failed to make rent payments for June 2013, and only paid partial rent for July and August. He states he has not received the base rent for September, October and November 2013. Accordingly, the landlord commenced the non-payment proceeding in Civil Court. Mr Mittelman also states that he has not signed the authorizations as the tenant has removed structural walls compromising the integrity of the building without adequate permits and failed to provide him with any plans or proposals for the completion of the project.

Plaintiff's counsel, Ira Cooper, Esq., alleges that the plaintiff is entitled to abate its rent as it was denied the use and full enjoyment of the premises while Dr. Zilberman's office was still in the premises. Counsel claims that because of the doctor's continued occupation, there was an ouster of possession and a actual partial eviction from the space. Plaintiff claims that the rent abated because it was deprived of one full floor of one side of the building. Further, plaintiff claims that unless the landlord signs the required documents it will be irreparably harmed. Counsel claims that good faith dealing requires the defendants to execute the documents needed by the agencies governing the issuance of permits and licenses needed for the running of the plaintiff's business. Counsel claims that the plaintiff is being substantially harmed by being unable to open its business after investing substantial funds in the renovation project. In addition, plaintiff asserts that the two actions should be joined in Supreme Court as the claim for outstanding rent and the within action both involve the plaintiff's partial eviction and the defendants' failure to remove the doctor from the premises in a timely manner.

In opposition to the motion to consolidate, the defendants' counsel, Steven Shakhnevich, Esq., states that as a result of the default by Fairytale, the landlord is being deprived of possesion of the premises as well as income from the property. Counsel [*4]claims that cosolidation is improper because the two actions do not have commons issues fo law and fact and moreover, the Civil Court is the prferred forum for resolving landlord-tenant disputes because the Civil Court is able to resolve the dispute more expeditiously than a Supreme Court action (citing Langotsky v 537 Greenwich LLC, 45 AD3d 405 [1st Dept. 2007] 44-46 W. 65th Apt. Corp. v Stvan, 3 AD3d 440 [1st Dept. 2004][the Civil Court is the preferred forum for resolving landlord-tenant issues. Only where Civil Court is without authority to grant the relief sought should the prosecution of a summary proceeding be stayed] Scheff v 230 E. 73rd Owners Corp., 203 AD2d 151 [1st Dept. 1994][only where Civil Court is without authority to grant the relief sought should the prosecution of a summary proceeding be stayed] J. Henry Schroder Bank & Trust Co. v South Ferry Bldg. Co., 88 AD2d 570 [1st Dept. 1982][it is error to consolidate a summary proceeding with a Supreme Court action when no basis exists for such consolidation and the result is delay of the summary proceeding] Lun Far Co. v Aylesbury Associates, 40 AD2d 794 [1st Dept. 1972][there is no equitable or other basis for removing the summary proceeding from the Civil Court where a prompt and expeditious determination may be had]).

Further, counsel alleges that the plaintiff has not established its entitlement to a preliminary injunction because it failed to demonstrate the likelihood of success on the merits, irreparable harm and that the balance of equities is in its favor. Counsel claims that consolidation of the two actions will unduly prejudice the landlord because the Supreme Court action is still in the early stage of litigation while the Civil Court matter is already scheduled for trial and stayed as a result of the instant order to show cause. Defendant alleges that it will be prejudiced as it is being deprived of the rental income and possession of the premises while the action is pending.

Upon review and consideration of the plaintiff's motion, defendants' affirmation in opposition and plaintiff's reply thereto, this Court finds that the motion to remove the Civil Court non-payment proceeding to the Supreme Court and for an order directing the plaintiff to immediately execute certain documents is denied.

This court finds that both the Supreme Court action and the summary proceeding involve a dispute over the non-payment of rent, constructive eviction, and failure to deliver full possession of the property, the resolution of which will be most expeditiously determined in the Civil Court. The plaintiff tenant may raise as a defense in the summary proceeding the defendants' alleged failure to deliver possession, to sign the [*5]necessary documents, and the alleged constructive eviction. Thus this Court finds that the issues in this matter can best be resolved in Civil Court, the preferred forum for landlord-tenant disputes (see Langotsky v 537 Greenwich LLC, 45 AD3d 405 [1st Dept. 2007][Civil Court is the preferred forum for landlord tenant disputes...only where Civil Court is without authority to grant the relief sought should the prosecution of a summary proceeding be stayed] All 4 Sports & Fitness, Inc. v Hamilton, Kane, Martin Enters., Inc., 22 AD3d 512 [2d Dept.2005][once a summary proceeding has been commenced in Civil Court where complete relief can be afforded to the tenant, there is no further basis for invoking the equitable jurisdiction of Supreme Court] 44-46 W. 65th Apt. Corp. v Stvan, 3 AD3d 440 [1st Dept. 2004] Scheff v 230 E. 73rd Owners Corp., 203 AD2d 151 [1st Dept. 1994]).

In addition, "absent extraordinary circumstances, a preliminary injunction will not issue where to do so would grant the movant the ultimate relief to which he or she would be entitled in a final judgment" (SHS Baisley, LLC v Res Land, Inc., 18 AD3d 727 [2d Dept. 2005] see Village of Westhampton Beach v Cayea, 38 AD3d 760 [2d Dept. 2007] St. Paul Fire & Mar. Ins. Co. v York Claims Serv., 308 AD2d 347 [1st Dept. 2003]). The plaintiff's request for an order requiring the landlord to sign certain documents will be academic if the holdover proceeding is sustained, and further, the application to sign the documents is a branch of the ultimate relief to which it would be entitled in a final judgment (see Board of Mgrs. of Wharfside Condominium v Nehrich, 73 AD3d 822 [2d Dept. 2010] SHS Baisley, LLC v Res Land, Inc., 18 AD3d 727 [2d Dept. 2005]). Further if the issue of the rent arrears is resolved in Civil Court there would be no reason for the landlord to fail to sign the required documents. However if the particular issue of the documents is not resolved in Civil Court, the plaintiff may seek that relief in the Supreme Court.

Accordingly for all of the above-stated reasons, it is hereby,

ORDERED, that the preliminary injunction enjoining the Civil Court from proceeding with the matter of Mittelman against Fairy Tale Day Care, Index No. L & T 16019/13, granted by this Court in the order to show cause dated November 15, 2013, is hereby vacated in all respects.

Dated: Long Island City, NY

March 18, 2014

_____________________

ROBERT J. MCDONALD

J.S.C.