ROSTANT v. SWERSKY

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 3787.

Attorney(S)

Michael J. Berman Associates, P.C., New York (Michael J. Berman of counsel), for appellant. Profeta Eisenstein, New York (Jethro M. Eisenstein of counsel), for respondent.

Judges

Angela M. Mazzarelli
Rolando T. Acosta
Rosalyn H. Richter
Sheri S. Roman

See more information ...

Smart Summary

Factual and Procedural Background

This appeal arises from an order of the Supreme Court, New York County, entered February 5, 2010, which granted the plaintiff's motion for leave to reargue the parties' motions for summary judgment on a cause of action seeking damages pursuant to RPAPL 853. Upon reargument, the court granted the plaintiff's motion for summary judgment on the issue of liability against defendant 790 RSD Acquisition only, and denied defendants' motion for summary judgment dismissing the cause of action. The Appellate Division affirmed this order unanimously and without costs.

Legal Issues Presented

Whether the plaintiff was precluded from moving for reargument before the order on the initial decision was entered.
Whether the plaintiff’s failure to submit all original motion papers on the reargument motion rendered the motion procedurally defective.
Whether the doctrine of res judicata barred the plaintiff from pursuing treble damages under RPAPL 853 in Supreme Court after a prior Housing Court action had reached finality.
Whether the Housing Court had jurisdiction to entertain a claim for damages pursuant to RPAPL 853 in a proceeding to restore possession under RPAPL article 7.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hulett v Niagara Mohawk Power Corp., 1 AD3d 999, 1003	A court has inherent power to reconsider and vacate its prior decision before issuing an order.	Supported the court’s authority to entertain plaintiff’s motion for reargument before entry of the order.
Manocherian v Lenox Hill Hosp., 229 AD2d 197, 202-203, lv denied 90 NY2d 835	Reaffirmed court’s inherent power to reconsider decisions sua sponte or on motion.	Further confirmed the court’s discretion to reconsider prior rulings.
William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27, lv dismissed in part and denied in part 80 NY2d 1005	CPLR 2221 does not specify which papers must be submitted on a motion for reargument; decision to entertain reargument is discretionary.	Supported the court’s discretion to accept plaintiff’s reargument motion despite incomplete submission of original papers.
Addison v New York Presbyt. Hosp./Columbia Univ. Med. Ctr., 52 AD3d 269	Procedural deficiencies in reargument motions do not warrant prejudice if parties are given opportunity to supplement and argue.	Supported the court’s finding that defendants were not prejudiced by plaintiff’s submissions or procedures.
Murray v National Broadcasting Co., 178 AD2d 157, 159	Doctrine of res judicata ordinarily bars claims that could have been raised in a prior final action.	Outlined the general rule potentially barring plaintiff’s claim for damages after final Housing Court action.
Kiryankova v Brovkina, 2003 NY Slip Op 50920[U]	Housing Court in summary possession proceedings lacks jurisdiction over claims for damages, including RPAPL 853 treble damages.	Established that damages claims must be pursued in separate actions, allowing plaintiff’s current claim to proceed.
Matter of Bedford Gardens Co. v Silberstein, 269 AD2d 445	Supports the principle that summary possession proceedings do not encompass damage claims.	Reinforced jurisdictional limitations of Housing Court regarding damages claims.
AE Tiebout Realty, LLC v Johnson, 26 Misc 3d 131[A], 2010 NY Slip Op 50055[U]	Damages for wrongful eviction must be sought in separate actions; affirms lack of jurisdiction in summary possession proceedings.	Confirmed that plaintiff’s separate action for treble damages is proper and not barred by res judicata.
Saccheri v Cathedral Props. Corp., 16 Misc 3d 111, 114	Damages for wrongful eviction, including RPAPL 853 treble damages, must be brought separately.	Supported the court’s conclusion that plaintiff’s damages claim is properly maintained in this separate action.
Mills v Wharton, 161 Misc 2d 209, 211; affd 164 Misc 2d 812	Res judicata does not bar claims that must be brought in separate actions due to jurisdictional limitations.	Provided authority that res judicata does not apply here given jurisdictional distinctions.
Rodriguez v 1414-1422 Ogden Ave. Realty Corp., 304 AD2d 400, 401	Claim-splitting doctrine does not bar separate actions for damages distinct from possession claims.	Supported the court’s rejection of res judicata and claim-splitting defenses.

Court's Reasoning and Analysis

The court first addressed the procedural propriety of the plaintiff’s motion for reargument, holding that the court possesses inherent authority to reconsider its decisions before entry of an order, whether on its own initiative or by motion. It rejected defendants' argument that plaintiff’s failure to submit all original motion papers on reargument rendered the motion defective, noting that CPLR 2221 does not mandate specific papers and that the court’s discretion governs such procedural matters. The court further found no prejudice to defendants because they were allowed to supplement the record and present additional argument.

Turning to the substantive issue, the court discussed the doctrine of res judicata, which generally bars claims that were or could have been raised in prior litigation. However, it emphasized that the Housing Court, where the plaintiff previously sought possession, lacks jurisdiction to entertain claims for damages under RPAPL 853. Because the prior Housing Court proceeding was limited to possession, the plaintiff’s subsequent action in Supreme Court to recover treble damages is not barred by res judicata. The court relied on multiple precedents establishing that damages for wrongful eviction must be pursued in separate actions in courts with appropriate jurisdiction.

Finally, the court noted that the motion court’s mistaken belief that the plaintiff was self-represented in Housing Court was immaterial to the outcome.

Holding and Implications

The Appellate Division affirmed the Supreme Court’s order granting the plaintiff’s motion for leave to reargue and, upon reargument, granting summary judgment on liability against defendant 790 RSD Acquisition, while denying defendants’ motion to dismiss the damages cause of action.

The direct effect of this decision is to allow the plaintiff to proceed with her claim for treble damages under RPAPL 853 against defendant 790 RSD Acquisition in Supreme Court. The court’s ruling clarifies that res judicata does not bar such a claim following a final possession proceeding in Housing Court, given that the latter lacks jurisdiction over damages claims. No new precedent was established beyond the application of existing principles regarding jurisdiction and res judicata.

Show full summary ...

CAROLINE ROSTANT, Respondent, v. DAVID SWERSKY, Defendant, and 790 RSD ACQUISITION, LLC, Appellant.

Plaintiff was not precluded from moving for reargument before the order on the first decision was entered. "A court has the inherent power, sua sponte or on motion of a party, to reconsider and vacate its prior decision before issuing an order thereon" ( Hulett v Niagara Mohawk Power Corp., 1 AD3d 999, 1003; Manocherian v Lenox Hill Hosp., 229 AD2d 197, 202-203, lv denied 90 NY2d 835). Nor did plaintiffs failure to submit all the original motion papers on her reargument motion render the latter procedurally defective. CPLR 2221 does not specify the papers that must be submitted on a motion for reargument, and the decision whether to entertain reargument is committed to the sound discretion of the court ( William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27, lv dismissed in part and denied in part 80 NY2d 1005). Moreover, the motion court gave all parties the opportunity to supplement the record with the underlying papers, and afforded defendants the opportunity to present any further argument warranted by the additional submissions. Thus, defendants were not prejudiced by the deficiencies in plaintiff's submissions on reargument or by the procedures adopted by the court ( see Addison v New York Presbyt. Hosp./Columbia Univ. Med. Ctr., 52 AD3d 269).

The doctrine of res judicata ordinarily would preclude plaintiff, whose prior Housing Court action to restore possession had been brought to a final conclusion, from seeking to recover treble damages pursuant to RPAPL 853 in Supreme Court, regardless of whether she had asserted a claim for those damages in the Housing Court action ( see Murray v National Broadcasting Co., 178 AD2d 157, 159). However, in a summary proceeding to restore possession brought pursuant to RPAPL article 7, the court does not have jurisdiction over a cause of action for damages, including damages pursuant to RPAPL 853 ( Kiryankova v Brovkina, 2003 NY Slip Op 50920[U], *2-3 [2003]; see also Matter of Bedford Gardens Co. v Silberstein, 269 AD2d 445; AE Tiebout Realty, LLC v Johnson, 26 Misc 3d 131[A], 2010 NY Slip Op 50055[U], affg for reasons stated at 23 Misc 3d 1112[A], 2009 NY Slip Op 50715[U], *4 [2009]). Damages for wrongful eviction, including RPAPL 853 treble damages, must be sought in a separate action in a court of competent jurisdiction ( Saccheri v Cathedral Props. Corp., 16 Misc 3d 111, 114; AE Tiebout, 2009 NY Slip Op 50715[U], *4). Accordingly, the doctrine of res judicata is no bar to plaintiffs pursuit of that claim in the instant action ( see Mills v Wharton, 161 Misc 2d 209, 211, affd 164 Misc 2d 812; see also Rodriguez v 1414-1422 Ogden Ave. Realty Corp., 304 AD2d 400, 401 [claim-splitting doctrine "does not preclude the tenant from seeking damages in an action separate from that in which he had sought to be restored to possession"]).

In view of the foregoing, it is of no moment that the motion court believed, albeit erroneously, that plaintiff represented herself in Housing Court.