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Supreme Court, Appellate Term, New York.

PARTNERSHIP 92 WEST, L.P. Owners, Petitioner-Landlord-Respondent, v. Eva Bogushawa DOBROLOWICZ, Respondent-Tenant-Appellant.

Decided: October 21, 2005

Present:  SUAREZ, P.J., GANGEL-JACOB, SCHOENFELD, JJ. John Patrick Rudden, New York City, for appellant. Lawrence P. Wolf, Chappaqua, and Livoti, Bernstein & Moraco, P.C., New York City (Robert F. Moraco of counsel), for respondent.

Order dated July 28, 2004 (Jean T. Schneider, J.) affirmed, with $10 costs.

We agree that the reservation of rights provision contained in the parties' March 11, 1999 settlement stipulation contemplated the institution of an independent, plenary action in the event that tenant chose to pursue the counterclaims asserted by her in the underlying summary eviction proceeding settled by the stipulation.   Having followed that precise course by commencing a Supreme Court action mirroring the allegations of the earlier Civil Court counterclaims (an action ultimately dismissed on statute of limitations grounds), tenant may not now disregard the plain meaning of the prior settlement agreement and achieve a second bite at the apple by attempting to resurrect the counterclaims via the within motion to “restore” them to the Civil Court calendar (compare Greenburger v. Diether, 10 Misc.3d 21, 806 N.Y.S.2d 327 [2005], decided herewith).   Viewed somewhat differently, “[t]he dismissal on statute of limitations grounds of [the] prior [Supreme Court action] seeking the same relief against essentially the same parties is sufficiently close to being on the merits to bar the [Civil Court remedy now sought by tenant] on the ground of res judicata” (Matter of Ferranti v. New York City Prop. Clerk's Office, 6 A.D.3d 178, 179, 773 N.Y.S.2d 876 [1st Dep't 2004], citing, inter alia, Smith v. Russell Sage Coll., 54 N.Y.2d 185, 194, 445 N.Y.S.2d 68, 429 N.E.2d 746 [1981] ).


I respectfully dissent.   The issue on this appeal is whether a party who, in a written stipulation, reserves her rights with respect to counterclaims should be allowed to pursue the counterclaims where the counterclaims have never been on the calendar, where the counterclaims have not been litigated on the merits and where the adversary has served no notice to resume prosecution as required by CPLR 3216(b)(3).   I find that she should.   There is no legal basis for the denial of the motion of Eva Bogushawa Dobrolowicz to place her counterclaims on the calendar for trial.   See Trustees of the Freeholders and Commonalty of the Town of Southampton v. Heilner, 143 A.D.2d 134, 135, 531 N.Y.S.2d 368 [2d Dep't 1988].   Nothing in the settlement agreement states that the counterclaims had to be asserted in a plenary action as landlord claims, and the majority's assertion that “tenant may not now disregard the plain meaning of the prior settlement agreement and achieve a second bite at the apple by attempting to resurrect the counterclaims via the within motion to ‘restore’ them to the Civil Court calendar” is misplaced.   The plain language of the stipulation reads:  “The parties agree that the Respondent reserve (sic ) her rights as to alleged damage to physical property and personal injury, if any, against the Petitioner and or its agents” and we should take the plain and ordinary meaning of the stipulation from within the four corners.   See MTB Bank-in-Liquidation v. Lloyd's Underwriters, 7 A.D.3d 276, 776 N.Y.S.2d 789 [1st Dep't 2004].   Civil Court had jurisdiction of the counterclaims, the counterclaims were timely asserted and never dismissed, and one of tenant's rights was to proceed on the timely asserted counterclaims in Civil Court.   Had landlord intended to preclude tenant from doing so, the stipulation should have so read.   Contrary to the assertion of the majority, tenant is not getting a second bite at the apple, since the dismissal of the subsequent Supreme Court action as time-barred, not on the merits, did not even give tenant a chance to put her teeth on the apple.   See Batavia Kill Watershed District in the County of Greene v. Charles O. Desch, Inc., 83 A.D.2d 97, 99-100, 444 N.Y.S.2d 958, 959-960 [3d Dep't 1981];  cf. Greenberg v. City of Yonkers, 37 N.Y.2d 907, 912, 340 N.E.2d 744, 746, 378 N.Y.S.2d 382, 385 [1975] [dissenting opinion of Jasen, J.];  Gargiulo v. Oppenheim, 95 A.D.2d 484, 492-493, 467 N.Y.S.2d 276, 281-282 [2d Dep't 1983].   The majority's reliance on Matter of Ferranti v. New York City Property Clerk's Office, 6 A.D.3d 178, 773 N.Y.S.2d 876 [1st Dep't 2004] and citation to Smith v. Russell Sage College, 54 N.Y.2d 185, 445 N.Y.S.2d 68, 429 N.E.2d 746 [1981], is misplaced.   In those cases, the subsequent actions were dismissed because the causes of action asserted were sufficiently similar to earlier claims which were already dismissed on statute of limitations grounds, clearly not what occurred in this matter.   The commencement of the subsequent action in Supreme Court should not result in a bar to restoration of the counterclaims herein, as the majority finds.   The Supreme Court action was commenced for the purpose of convenience and economy, since an additional party, not involved in the Civil Court matter, was involved in the case, and Civil Court would not have had monetary jurisdiction over the claims asserted against the additional party (cf. CCA 208[b] ).  Tenant would then have had to make a motion in the Supreme Court action to have the Civil Court action removed to Supreme Court.

This constitutes the decision and order of the court.