NDIAYE v. 2123 FDB MPPH LP (2019)

Supreme Court, Appellate Term, New York,

Thierno NDIAYE, Plaintiff-Appellant, v. 2123 FDB MPPH LP, Defendant-Respondent,

570148 /19

Decided: May 17, 2019

PRESENT: Shulman, P.J., Gonzalez, Edmead, JJ.

Judgment (Louis L. Nock, J.), dated March 13, 2018, reversed, without costs, and new trial ordered.

The dismissal of the underlying Small Claims action on res judicata grounds did not render substantial justice according to the rules and principles of substantive law (see CCA 1807). Plaintiff-tenant's property damage claim against defendant-landlord was not (and could not properly be) litigated in the prior nonpayment proceeding between the parties (see O'Brien v. City of Syracuse, 54 NY2d 353, 357 [1981]), since plaintiff seeks damages traditionally within the scope of tort liability, which are more appropriately tried outside the limited sphere of the landlord-tenant proceeding (see 610 W. 142nd St. Owners Corp. v. Braxton, 140 Misc 2d 826 [App Term, 1st Dept 1988]).

In remanding the matter for a new trial, we express no view as to the merits of plaintiff's claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

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