| 47 Thames Realty, LLC v Rusconie |
| 2011 NY Slip Op 05226 [85 AD3d 853] |
| June 14, 2011 |
| Appellate Division, Second Department |
| 47 Thames Realty, LLC, Appellant, v Paul Rusconie et al.,Respondents. |
—[*1] Bierman & Palitz, LLP, New York, N.Y. (Mark H. Bierman and Stephen H. Palitz ofcounsel), for respondents.
In a consolidated action, inter alia, for ejectment and to recover damages for use andoccupancy, the plaintiff appeals, as limited by its brief, from so much of an order of the SupremeCourt, Kings County (Bayne, J.), dated July 6, 2009, as denied those branches of its motionwhich were pursuant to CPLR 3211 (b) to dismiss the defendants' fourth affirmative defense, andfor summary judgment on its first cause of action, and granted those branches of the defendants'separate cross motions which were for summary judgment dismissing the complaint as barred bycollateral estoppel or, alternatively, to strike the complaint pursuant to CPLR 3126.
Ordered that the order is modified, on the law, on the facts, and in the exercise of discretion,by deleting the provisions thereof granting those branches of the defendants' separate crossmotions which were for summary judgment dismissing the complaint as barred by collateralestoppel or, alternatively, to strike the complaint pursuant to CPLR 3126, and substitutingtherefor provisions denying those branches of the defendants' separate cross motions; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements.
Collateral estoppel "precludes a party from relitigating in a subsequent action or proceedingan issue clearly raised in a prior action or proceeding and decided against that party or those inprivity, whether or not the tribunals or causes of action are the same" (Ryan v New York Tel.Co., 62 NY2d 494, 500 [1984]; see Gramatan Home Invs. Corp. v Lopez, 46 NY2d481, 485 [1979]). In other words, "collateral estoppel effect will only be given to matters actuallylitigated and determined in a prior action" (Kaufman v Eli Lilly & Co., 65 NY2d 449,456 [1985] [internal quotation marks omitted]). "An issue is not actually litigated if, for example,there has been a default, a confession of liability, a failure to place a matter in issue by properpleading or even because of a stipulation" (id. at 456-457). Thus, contrary to the SupremeCourt's conclusion, the entry of a default order upon the plaintiff's failure to appear at acompliance conference in a related action (47 Thames Realty, LLC v Robinson, indexNo. 2227/06) was not entitled to collateral estoppel effect in this action (see Kaufman v EliLilly & Co., 65 NY2d at 456-457; see also Greenberg v De Hart, 4 NY2d 511, 515[1958]; Franchise Acquisitions GroupCorp. v Jefferson Val. Mall Ltd. Partnership, 73 AD3d 1123 [2010]; Brooks v Haidt, 59 AD3d 233, 234[2009]; Aguilar v Jacoby, 34 AD3d706, 707-708 [2006]; Espinoza vConcordia Intl. [*2]Forwarding Corp., 32 AD3d 326,328 [2006]). Accordingly, the Supreme Court should not have dismissed the complaint on thisbasis.
To the extent the Supreme Court struck the complaint based on the plaintiff's failure tocomply with the defendants' discovery demands, it was an improvident exercise of discretion, asthe defendants failed to show clearly that the plaintiff's conduct was willful and contumacious(see Lomax v Rochdale Vil., Inc.,76 AD3d 999 [2010]; Iscowitz vCounty of Suffolk, 54 AD3d 725 [2008]).
The plaintiff, however, failed to satisfy its prima facie burden of establishing its entitlementto judgment as a matter of law on its first cause of action to eject the defendants, as the plaintiffdid not demonstrate that the defendants fall outside the coverage of the Emergency TenantProtection Act of 1974 (see McKinney's Uncons Laws of NY § 8621 et seq.[L 1974, ch 576, § 4, as amended]; Matter of Gracecor Realty Co. v Hargrove,90 NY2d 350 [1997]; Matter of Salvati v Eimicke, 72 NY2d 784 [1988]).Concomitantly, the plaintiff did not demonstrate its entitlement to dismissal of the defendants'fourth affirmative defense pursuant to the Emergency Tenant Protection Act.
In addition, as indicated by the parties in their supplemental submissions to this Court, duringthe pendency of this appeal, the Legislature amended the "Loft Law" (see MultipleDwelling Law art 7-C). Contrary to the plaintiff's contention, the record fails to establish that thesubject building does not meet the definition of an "interim multiple dwelling" (seeMultiple Dwelling Law § 281 [1], [5]). Mastro, J.P., Chambers, Roman and Cohen, JJ.,concur.