TEWKSBURY MANAGEMENT GROUP, LLC, plf-ap, v. ROGERS INVESTMENTS NV LP, def-res

10827. TEWKSBURY MANAGEMENT GROUP, LLC, plf-ap, v. ROGERS INVESTMENTS NV LP, def-res — Bruce Levinson, New York, for ap — Oved & Oved LLP, New York (Aaron J. Solomon of counsel), for res — Order, Supreme Court, New York County (Anil C. Singh, J.), entered April 19, 2012, which, to the extent appealed from, granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs.

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10827. TEWKSBURY MANAGEMENT GROUP, LLC, plf-ap, v. ROGERS INVESTMENTS NV LP, def-res — Bruce Levinson, New York, for ap — Oved & Oved LLP, New York (Aaron J. Solomon of counsel), for res — Order, Supreme Court, New York County (Anil C. Singh, J.), entered April 19, 2012, which, to the extent appealed from, granted defendant’s motion to dismiss the complaint, unanimously affirmed, with costs.

The first and second causes of action allege that defendant landlord breached the parties’ lease by failing, inter alia, to obtain a valid certifi-cate of occupancy for the building, to remove building violations that interfered with plaintiff tenant’s intended use of the premises as specified in the lease agreement, to provide heat, and to deliver to plaintiff the entire premises as described in the lease. Since plaintiff could have raised these claims in defendant’s 2008 summary proceeding for nonpayment of rent, which resulted in consent judgments of possession and arrears in defendant’s favor, the causes of action were correctly dismissed pursuant to the doctrine of res judicata (see Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]; Ruth v. Shalom Bros., 276 AD2d 408 [1st Dept 2000]; 99 Cents Concepts, Inc. v. Queens Broadway, LLC, 70 AD3d 656 [2d Dept 2010]). These claims were inextricably intertwined with defendant’s claims in the summary proceeding (see All 4 Sports & Fitness, Inc. v. Hamilton, Kane, Martin Enters., Inc., 22 AD3d 512 [2d Dept 2005]). The doctrine of res judicata also bars the fifth cause of action, which alleges that defendant lacked capacity to bring the summary proceeding since it was not authorized to do business in New York State, and the sixth cause of action, which seeks an injunction directing that plaintiff be restored to possession of the premises, based on the contention that defendant was not entitled to bring the summary proceeding (see Henry Modell & Co. v. Minister, Elders & Deacons of Ref. Prot. Dutch Church of City of N.Y., 68 NY2d 456, 461 [1986]).

TEWKSBURY MANAGEMENT GROUP, LLC, plf-ap, v. ROGERS INVESTMENTS NV LP, def-res

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