| Kally v Mount Sinai Hosp. |
| 2007 NY Slip Op 08195 [44 AD3d 1010] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Charles Kally et al., Respondents, v Mount Sinai Hospital,Appellant. |
—[*1] Lopresto & Barbieri, P.C., Astoria, N.Y. (Guy Barbieri of counsel), forrespondents.
In an action to rescind a commercial lease, the defendant appeals from an order of theSupreme Court, Queens County (Geller, J.), dated October 10, 2006, which denied its motionpursuant to CPLR 602 (b) to remove a summary holdover proceeding entitled Matter of Kallyv Mount Sinai Hospital pending in the Civil Court, Queens County, under index No.58005/06, to the Supreme Court, Queens County, and to consolidate that proceeding with thisaction.
Ordered that the order is reversed, with costs, on the law and in the exercise of discretion,and the defendant's motion to remove the summary holdover proceeding entitled Matter ofKally v Mount Sinai Hospital pending in the Civil Court, Queens County, under index No.58005/06, to the Supreme Court, Queens County, and to consolidate that proceeding with thisaction is granted; and it is further,
Ordered that the Clerk of the Civil Court, Queens County, is directed to deliver to the Clerkof the Supreme Court, Queens County, all papers filed in the proceeding entitled Matter ofKally v Mount Sinai Hospital, under index No. 58005/06, and certified copies of all minutesand entries.
The defendant moved pursuant to CPLR 602 (b) to remove a summary holdover proceedingentitled Matter of Kally v Mount Sinai Hospital pending in the Civil Court, QueensCounty under index No. 58005/06, to the Supreme Court, Queens County, and to consolidate that[*2]proceeding with this action. The Supreme Court denied thedefendant's motion on the ground that the Civil Court is the preferred forum for resolvinglandlord-tenant issues.
Where common questions of law or fact exist, a motion to consolidate should be grantedabsent a showing of prejudice to a substantial right by the party opposing the motion (seeNigro v Pickett, 39 AD3d 720, 722 [2007]; Flaherty v RCP Assoc., 208 AD2d 496,498 [1994]; Stephens v Allstate Ins. Co., 185 AD2d 338 [1992]; Zupich v FlushingHosp. & Med. Ctr., 156 AD2d 677 [1989]). Here, both the holdover proceeding and theaction concern the same parties, and both involve common questions of law and fact regarding alease executed by the defendant with respect to the premises that are the subject of the holdoverproceeding. Resolution of the action in the Supreme Court will necessarily decide the issues inthe holdover proceeding, and the two should be consolidated in the interest of judicial economy(see Flaherty v RCP Assoc., 208 AD2d at 498; DeCastro v Bhokari, 201 AD2d382, 383 [1994]; Morrell & Co. Wine Emporium v Richalan Realty Corp., 93 AD2d 736,737 [1983]). Moreover, the equitable relief sought in the Supreme Court is unavailable in thesummary proceeding (see NY City Civ Ct Act § 213; DeCastro v Bhokari,201 AD2d at 382; Morrell & Co. Wine Emporium v Richalan Realty Corp., 93 AD2d at736; Lorch v Lorch, 7 AD2d 641 [1958]). Accordingly, the Supreme Court improvidentlyexercised its discretion in denying the defendant's motion. Ritter, J.P., Fisher, Covello andDickerson, JJ., concur.