Recitation, as required by CPLR §2219(a), of the papers considered in the review of Respondent Charvis Partlow’s motion for partial summary judgment.Papers NumberedNotice of Motion, Affirmation, Affidavit and Exhibits annexed 1Affirmation in Opposition and Exhibit annexed 2Replying Affirmation 3DECISION/ORDER After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows: As relevant to this motion, in this summary nonpayment proceeding Petitioner Vale partners LLC (“Petitioner”) is seeking a possessory judgment against Respondent Charvis Partlow, the rent stabilized tenant of the subject apartment, as well as a money judgment for $657.90 in rent arrears (as arrears from October 2017) and $10,000 as “Additional rent due to damages caused by tenant pursuant to paragraph 13 of [his] lease agreement.”1Respondent has moved for partial summary judgment, pursuant to CPLR 3212(e), seeking an order severing Petitioner’s claim for the $10,000 in additional rent. He argues that “additional rent” cannot be sought as part of possessory judgment against a rent stabilized apartment. Therefore, he asserts any claim for “additional rent” should be severed from this proceeding.Petitioner opposes the motion. It does not dispute that it cannot obtain a possessory judgment on its claim for “additional rent.”2 Rather, it argues it should be permitted to seek a non-possessory judgment for damages caused by Respondent provided its claim for such damages arises out of the same transaction or occurrence that gives rise to their claim for a possessory judgment for the alleged rent arrears.Within the papers submitted in support of, and in opposition to, this motion, neither party has provided any factual information regarding the basis of the “additional rent” claim. However, by making reference to paragraph 13 of the lease Petitioner has plainly indicated it is related to property damage allegedly caused by Respondent. Moreover, in opposition to an earlier motion to dismiss this proceeding3 Petitioner asserted the claim for “added rent comes from the fact that…Respondent caused a fire in the subject apartment which resulted in costly damage to [the] apartment in the sum of $10,000.”Thus, the issue to be determined in this motion is whether Petitioner can seek a non-possessory judgment against Respondent for property damaged that resulted from a fire he allegedly caused.Respondent is incorrect to the extent he argues a landlord can never seek “additional rent” from a rent stabilized tenant in a summary non-payment eviction proceeding. Indeed, some of the cases he cites plainly state non-possessory money judgments may be entered, even against a rent stabilized tenant, for certain claims, such as legal fees, labeled as “additional rent” in a lease. See, Crystal World Realty Corp. v. Sze, 2001 WL 1635430 (App Term 1st Dept 2001); Silber v. Schwartzman, 150 Misc 2d 1 (App Term 1st Dept 1991).Nevertheless, the type of “additional rent” claimed by Petitioner in this proceeding is not appropriate for litigation in Housing Court. Property damage claims such as those sought by Petitioner, traditionally within the scope of tort liability, is outside the scope of Housing Court proceeding. New York City Civil Court Act §110(a); Kings Park 8809, LLC v. Stanton-Spain, 53 Misc 3d 145(A); 390 West End Associates v. Raiff, 166 Misc 2d 730 (App Term 1st Dept 1995); 610 West 142nd Street Owners Corp. v. Braxton, 140 Misc 2d 826 (App Term 1st Dept 1988).Petitioner’s argument that its property damage claim against Respondent can be heard in Housing Court based on revisions to the Civil Practice Act in 1949, allowing permissive joinder of parties and causes of action, ignores the limited scope of Housing Court proceedings. Moreover, Petitioner’s utilization of a lease that labels property damages claims as “additional rent” does not transform Petitioner’s claim to one that is properly adjudicated in Housing Court.For these reasons, Respondent’s motion is granted and the claim for $10,000 in property damage is severed from this petition without prejudice to Petitioner seeking such damages in the proper forum. Town Management Co. v. Leibowitz, 37 Misc 3d 49 (App Term 2d, 11th & 13th Jud Dist 2012). This proceeding is placed on the court’s calendar and the parties are to appear before the court, Part F, on January 17, 2019, at 9:30 at a.m., for settlement or trial.This constitutes the decision and order of the court.Dated: December 2, 2018Bronx, New York
