JOAN A. MADDEN, Judge.
In this action arising out of a landlord tenant relationship, defendants move for an order (1) dismissing the complaint pursuant to CPLR 3211(a)(4) on the grounds that there is another action pending in this court seeking the same relief between the same parties, (2) dismissing the causes of action for breach of quiet enjoyment, constructive eviction, a declaratory judgment, injunctive relief and attorneys' fees for failure to state a cause of action, (3) dismissing the cause of action for negligence as duplicative of the cause of action of breach of the warranty of habitability, (4) dismissing all causes of action existing prior to December 8, 2011 on the grounds of res judicata, (5) dismissing all causes of action to the extent they are barred by the applicable statute of limitations, and (6) dismissing plaintiff's demand that the court "direct Defendants to make good faith efforts to cooperate with Verizon in an attempt to wire the building for high speed internet, TV and telephone access," or, in the alternative, staying the consideration of such demand pursuant to CPLR 2201, pending the outcome of an administrative proceeding between Verizon and defendant Cambridge Development, LLC ("Cambridge"). Plaintiff Andrea Truppin (Truppin) opposes the motion.
Truppin is a rent regulated tenant of apartment 2002 ("the Apartment") at 33 West 86
Truppin is also a plaintiff in a previously commenced putative class action against the defendants entitled
Another Action Pending
Defendants argue that based on the existence of the Prior Action, this action must be dismissed. In support of their argument, defendants point out that a comparison of the amended complaint in the Prior Action and the complaint in this action reveals that whole sections relating to the alleged wrongs are identical, and that both the Prior Action and the instant one seek the same damages (i.e. for abatement of rent and damages for injury to property), assert causes of action for breach of the warranty of habitability, and include a laundry list of dangerous and unhealthy conditions such an inadequate repairs, vermin, and noxious fumes. Defendants also note that Truppin and defendants are parties in both actions, and that Truppin's attorney in this action is the attorney for Truppin and the other plaintiffs in the Prior Action.
Truppin opposes the motion, arguing that the conditions alleged in this action are unique to Truppin and therefore are not properly subject to the Prior Action, which is limited to "problems caused by [Cambridge's] unauthorized operation of a senior assisted living center."
"Pursuant to CPLR 3211(a)(4), a court has broad discretion as to the disposition of an action when another action is pending."
Here, the Prior Action and the instant one contain similar allegations and seek similar relief and there is a substantial identity of parties. At the same time, however, the instant action includes allegations and seeks relief unique to Truppin. Under these circumstances, and as the Prior Action and this action involve common issues of law and fact, in the exercise of its discretion, the court denies defendants' motion to dismiss on the ground of another action pending and directs that the two actions be consolidated for joint discovery and trial.
Failure to State a Cause of Action
Defendants next argue that the causes of action for breach of the covenant of quiet enjoyment, constructive eviction, a declaratory judgment, injunctive relief and attorneys' fees should be dismissed for failure to state a cause of action.
On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be liberally construed in a light most favorable to the plaintiff, and all factual allegations must be accepted as true.
With respect to the second cause of action for breach of the covenant of quiet enjoyment, to state such a cause of action, a plaintiff must allege: (i) constructive or actual eviction, and (ii) conduct by landlord that substantially and materially deprived the tenant of the beneficial use and enjoyment of the premises.
Moreover, while "[a] constructive eviction does not require physical removal from the premises [it must be] demonstrate[d] that the lessee could not use the premises for the purpose(s) intended and had to abandon the premises under the circumstances."
For the same reason, the third cause of action for constructive eviction must be dismissed as this claim fails to allege that the conditions or wrongful acts of defendants caused plaintiff to abandoned the Apartment or a portion of the Apartment.
The fourth cause of action, for negligence, alleges that defendants failed to exercise reasonable care in their duties as landlord and managing agents and, as a result, plaintiff suffered damages, including the reduced value of the Apartment and the damages to her personal property and costs associated with the protection of her property. Defendants seek to dismiss the claim solely on the ground that it is duplicative of Truppin's breach of warranty of habitability claim. As the two claims may be pleaded in the alternative, the motion to dismiss the negligence claim is denied.
The fifth cause of action (incorrectly denominated the fourth cause of action) seeks a declaratory judgment alleging that "[t]here currently exists a justiciable dispute between the parties as to whether defendants are required to permit plaintiff to perform repair work determined by this court to be necessary, [and that] . . . plaintiff has no adequate remedy at law" (Complaint, ¶'s 63, 64). Specifically, Truppin seeks (i) a declaration that Truppin is "entitled to full, unrestricted access to the subject premises for the purpose of performing the repair/renovation work [she] deems necessary, and to have the repair work performed by a licensed and insured contractor, of her choice, with expenses of the work to be borne by defendant;" (ii) "an order directing defendants to make good faith efforts to cooperate with Verizon in an attempt to wire the building for FIOS high speed internet, TV and telephone access;" (iii) "an order permitting plaintiff, through a licensed and bonded contractor to install a washer and dryer combination unit in the subject premises (as a result of chemicals allegedly being used in the laundry room)"; (iv) "an order directing defendants to hire a qualified engineer to (a) introduce an effective solution to stop cooking odors from entering plaintiff's apartment, (b) install an effective sound proofing around the grill fan on roof to prevent the sound of the fan from entering plaintiff's apartment;" and (v) "an order directing defendants to seek out the source of the second machine noise and introduce an effective solution so that the noise does not enter plaintiff's apartment" (Id, ¶'s 65-69).
Defendants argue that the claim seeking declaratory relief should be dismissed as plaintiff has an adequate remedy at law in the form of damages based on her claim for breach of warranty of habitability.
"The general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations."
Here, at least at this juncture, it cannot be said that breach of warranty claim would provide an adequate remedy for the relief sought in the cause of action for a declaratory judgment and, in any event, as indicated above, the existence of such remedy would not require the court to deny a request for declaratory relief.
The next cause of action, for injunctive relief, alleges that "[p]laintiff has no adequate remedy at law," and seeks "a permanent injunction requiring defendants to provide reasonable access to the subject building and subject premises for the purposes of hiring a licensed and insured contractor of her own choosing, to perform work repairing the conditions and/or making repairs as set forth in the complaint" (Complaint, ¶'s 73, 74).
Defendants argue that the cause of action for injunctive relief should be dismissed as it is a form of remedy and not a separate cause of action and, in any event, if such a claim exists it is dependent on the merit of the substantive claims asserted, and requires a showing that damages are not recoverable. Plaintiff counters that the claim is sufficiently pleaded, and that damages do not provide an adequate remedy for the relief sought.
Contrary to defendants' argument, New York recognizes a cause of action for injunctive relief, and courts have found such a remedy appropriate where damages do not provide an adequate remedy for a continuing breach of the warranty of habitability.
As for the final cause of action for attorneys' fees, it alleges that the conduct of defendants "constitutes breaches of obligations owed to plaintiff, and, if permitted by law, entitle plaintiff to reasonable attorneys' fees . . . [and] demands from Cambridge Development, LLC, a judgment for her reasonable attorneys' fees, costs and disbursements in connection with this action pursuant to RPL § 234 and/or otherwise, if applicable" (Complaint ¶'s 76, 77).
"Under the general rule, attorneys' fees and disbursements are incidents of litigation and the prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties or by statute or court rule."
Real Property Law § 234 provides that when a lease allows for a landlord's recovery of attorneys' fees resulting from a tenant's failure to perform a covenant under the lease, a reciprocal right is implied for the landlord to pay attorneys' fees incurred by the tenant as a result of the either the landlord's failure to perform a covenant under the lease or the tenant's successful defense.
In this case, while the allegations related to the breach of the warranty of habitability may provide a basis for a finding that defendants failed to perform a covenant under the lease (
Accordingly, the claims for breach of the covenant of quiet enjoyment (second cause of action, constructive eviction (third cause of action), and attorneys' fees (seventh cause of action erroneously labeled as the sixth cause of action) are dismissed for failure to state a cause of action.
Defendants also argue that the complaint should be dismissed on the grounds of res judicata to the extent its allegations relate to matters prior to December 8, 2011, the date that Truppin and Cambridge entered into a stipulation of settlement to resolve a nonpayment proceeding brought by Cambridge against Truppin in the Housing Part of Civil Court of the City of New York. Truppin argues that res judicata does not apply to those issues not resolved by the settlement, and notes that while she agreed to pay Cambridge outstanding rent she also received a rent abatement.
The relevant stipulation of settlement ("the Stipulation"), which is so-ordered by the court, provides that Truppin will pay Cambridge rent due through December 31, 2011, less an abatement of $7,000. The Stipulation provides that the $7,000 abatement is "in full settlement of any and all claims that [Truppin] has or may have relating to or arising out of conditions in the subject apartment, conditions in any other apartment in the subject building and conditions in the subject building itself through the date of this stipulation, including but not limited to Truppin's defenses and counterclaims."
Under the transactional approach to res judicata adopted by New York courts, "`once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.'"
That said, res judicata applies only when the court determining the summary proceeding would have jurisdiction over the claims brought in the second action or proceeding.
Thus, the only remaining claim at issue is for breach of warranty of habitability. As a preliminary matter, it should be noted that the summary proceeding was resolved, not by a determination of the court on the merits which would be afforded res judicata effect (see
Here, there is no language in the Stipulation stating that it has been discontinued with prejudice, nor have defendants provided evidence that the summary proceeding was dismissed or discontinued with prejudice.
Accordingly, the motion to dismiss on res judicata grounds is granted only to the extent of barring that part of Truppin's claim for breach of warranty of habitability seeking a rent abatement or damages for the period from April 2010 to through December 31, 2011
Statute of Limitations
A cause of action for breach of the warranty of habitability is governed by a six year statute of limitations.
Accordingly, defendants' motion is granted to the extent of finding that Truppin's claim for breach of warranty of habitability is restricted to those allegations relating to conditions existing, or conduct occurring, on or after March 17, 2010.
In view of the above, it is
ORDERED that defendants' motion to dismiss for failure to state a cause of action is granted to the extent of dismissing the claims for breach of the covenant of quiet enjoyment (second cause of action), constructive eviction (third cause of action), and attorneys' fees (seventh cause of action, erroneously labeled as the sixth cause of action); and it is further
ORDERED that defendants' motion to dismiss on statute of limitations grounds is granted to the extent that the breach of warranty claim is limited to those conditions existing on or before March 17, 2010; and it is further
ORDERED that to the extent the complaint seeks relief related to Verizon's attempt to wire the Building for high speed internet, TV and telephone access, such relief is stayed pending the outcome of the administrative proceeding before the New York State Public Service Commission with respect to Verizon's access to the Building or further order of the court; and it is further
ORDERED defendants' motion to dismiss on res judicata grounds is granted only to the extent of barring that part of Truppin's claim for breach of warranty of habitability seeking a rent abatement or damages for the period from April 2010 to through December 31, 2011 and is otherwise denied; and it is further
ORDERED that defendants' motion to dismiss on the ground on another action pending is granted only to the extent of consolidating this action for joint trial and discovery purposes with
ORDERED that upon payment of appropriate calender fees, the filing of notes of issue and statements of readiness in each of the actions, and upon service of a copy of this order with notice of entry on the Clerk of the Trial Support Office (Room 158), said Clerk shall place the aforesaid actions upon the trial calendar for a joint trial; and it is further
ORDERED that a status conference shall be held in this action and