Ijezie v. Rozenberg

Ijezie v Rozenberg 2024 NY Slip Op 30347(U) January 30, 2024 Supreme Court, New York County Docket Number: Index No. 158888/2023 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

INDEX NO. 158888/2023 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 01/30/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice ---------------------------------------------------------------------------------X INDEX NO. 158888/2023 SAMARI IJEZIE, MOTION DATE 01/16/2024 Plaintiff, MOTION SEQ. NO. 003 -v- LANA ROZENBERG, D.D.S., and LANA ROZENBERG DECISION + ORDER ON D.D.S., P.C., MOTION Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 17, 18, 19, 20, 21, 25, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL/X-MOT DISMISS .

In this action to recover damages for dental malpractice, the plaintiff moves pursuant to CPLR 602(a) to consolidate the action entitled Rozenberg v Ijezie, pending in the Civil Court, New York County, under Civil Court Index No. CC-060225-22/NY (the Civil Court action) with the instant action. The defendants oppose the motion, and cross-move pursuant to CPLR 3211(a)(4) to dismiss the complaint in this action on the ground that the Civil Court action constitutes a prior action pending for the same relief as the instant action. The plaintiff opposes the cross motion. The plaintiff’s motion is granted, the defendants’ cross motion is denied, the Civil Court action is consolidated with the instant action to the extent of joining them for trial, the Clerk is directed to assign a New York County Supreme Court index number to the transferred Civil Court action, without the requirement of payment of an additional index number fee, the caption is amended accordingly, and the trial in the Civil Court action is permanently stayed.

On June 27, 2022, the defendant Lana Rozenberg, D.D.S., commenced the Civil Court action against the plaintiff in the Commercial Claims Part of the Civil Court, New York County (see New York City Civ Ct Act §§ 400, 1801-A), seeking to recover $10,000, based on the

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“Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed on the ground that there is another action pending between the same parties for the same cause of action” (Jadron v 10 Leonard St., LLC, 124 AD3d 842, 843 [2d Dept 2015]). Inasmuch as the plaintiff amended her answer in the Civil Court action so as to withdraw her dental malpractice counterclaim several weeks before commencing this action, there was no longer an action pending in which the plaintiff was seeking the same relief at the time that she commenced the instant action. Moreover, it is of no moment that the affirmative defenses that the plaintiff raised in the Civil Court action may implicate the same issues of dental malpractice as were raised in the instant action, since the actual claims in the two actions seek completely different relief---payment of professional fees in the Civil Court action and recovery for pain and suffering in the instant dental malpractice action (see Nakazawa v Horowitz, 56 AD3d 985, 986 [2d Dept 2008]; Zirmak Invs., L.P. v Miller, 290 AD2d 552, 553 [2d Dept 2002]; J.A. Valenti Electric Co. v Board of Educ., Yonkers, 56 AD2d 884, 885 [2d Dept 1977]). Hence, the defendants failed to establish their entitlement to dismissal of the complaint

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In any event, even if the plaintiff did not withdraw her dental malpractice counterclaim in the Civil Court action, that court lacked subject matter jurisdiction over it. Although the Civil Court generally has jurisdiction over counterclaims in excess of the monetary limitation otherwise imposed on claims initially asserted in that court (see NY Const, art VI, § 15[b]; New York City Civ Ct Act § 208[b]; Matter of Moorman v Meadow Park Rehabilitation and Health Care Center, LLC, 57 AD3d 788, 789 [2d Dept 2008]), with respect to claims prosecuted in the Commercial Claims Part, New York City Civ Ct Act §1805-A(c) provides that “no counterclaim shall be permitted in a commercial claims action, unless the court would have had monetary jurisdiction over the counterclaim if it had been filed as a commercial claim. Any other claim sought to be maintained against the claimant may be filed in any court of competent jurisdiction.” Since the plaintiff’s initial counterclaim could not be filed as a commercial claim and her demand for relief necessarily exceeded the monetary jurisdiction of the Civil Court, that court would have been obligated to dismiss the counterclaim for lack of subject matter jurisdiction regardless of whether the defendants moved to dismiss it, since “‘a defect in subject matter jurisdiction may be raised at any time by any party or by the court itself, and subject matter jurisdiction cannot be created through waiver, estoppel, laches or consent’” (Strunk v New York State Bd. of Elections, 126 AD3d 777, 779 [2d Dept 2015], quoting Burke v Aspland, 56 AD3d 1001, 1003 [3d Dept 2008]; see Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12, 17 [2008]). Hence, the Civil Court action never could have been a pending action for the same relief within the meaning of CPLR 3211(a)(4), and, under the circumstances presented here, this court nonetheless would have exercised its discretion to deny the cross motion on that ground had the counterclaim not been withdrawn.

The court, however, exercises its discretion to consolidate the Civil Court action with this action to the extent of joining them for trial. “Consolidation is generally favored in the interest of 158888/2023 IJEZIE, SAMARI vs. ROZENBERG DDS, LANA ET AL Page 3 of 6 Motion No. 003

In light of this court’s determination to transfer the Civil Court action to this court and consolidate it with the instant action to the extent of joining the two actions for trial, the court permanently stays the trial of the Civil Court action.

Accordingly, it is, ORDERED that the plaintiff’s motion is granted, and the action entitled Rozenberg v Ijezie, pending in the Civil Court, New York County, under Civil Court Index No. CC-060225- 22/NY, is removed and transferred to this court and consolidated with the action entitled Ijezie v Rozenberg, pending in the Supreme Court, New York County under Index No. 158888/2023, to the extent of joining them for trial; and it is further, 158888/2023 IJEZIE, SAMARI vs. ROZENBERG DDS, LANA ET AL Page 4 of 6 Motion No. 003

ORDERED that the defendants’ cross motion to dismiss the complaint in this action is denied; and it is further, ORDERED that, within 15 days of the entry of this decision and order, the plaintiff shall serve a copy of this decision and order with notice of entry upon both the County Clerk and the Clerk of the General Clerk’s Office, which shall be effectuated in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases, accessible at the “E-Filing” page on the court’s website at https://www.nycourts.gov/LegacyPDFS/ courts/ 1jd/supctmanh/Efil-protocol.pdf (nycourts.gov), and, to comply with those procedures, the plaintiff shall (1) upload the decision and order with notice of entry to the NYSCEF system under document title “SERVICE ON SUPREME COURT CLERK (GENL CLERK) W/COPY OF ORDER” AND (2) separately file and upload the notice required by CPLR 8019(c) in a completed Form EF-22, along with a copy of the decision and order with notice of entry, under document title “NOTICE TO COUNTY CLERK CPLR 8019(C)”; and it is further, ORDERED that, within 15 days of the entry of this decision and order, the plaintiff shall also serve a copy of this decision and order with notice of entry upon the Clerk of the Civil Court, New York County, 111 Centre Street, New York, New York 10013; and it is further, ORDERED that, upon the plaintiff’s service of a copy of this order with notice of entry upon all appropriate clerks’ offices, as set forth above, the trial in the action entitled Rozenberg v Ijezie, pending in the Civil Court, New York County, under Index No. CC-060225-22/NY be, and hereby is, permanently stayed; and it is further, ORDERED that the caption of the actions joined for trial are amended to read as follows: ----------------------------------------------------------------X SAMARI IJEZIE, Plaintiff, ACTION NO. 1 Index No. 158888/2023 v

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LANA ROZENBERG, D.D.S., and LANA ROZENBERG, D.D.S., P.C., Defendants. -----------------------------------------------------------------------X LANA ROZENBERG, D.D.S., Plaintiff, ACTION NO. 2 NYC Civ Ct Ind. No. CC-060225-22/NY V SAMARI IJEZIE, Defendant. -----------------------------------------------------------------------X; and it is further, ORDERED that, upon the plaintiff’s service of a copy of this order with notice of entry upon all appropriate court clerks’ offices, as set forth above, (a) the County Clerk shall assign a new New York County Supreme Court index number to Action No. 2, without the necessity of the payment of an additional index number fee, (b) the County Clerk and all appropriate court support offices shall thereupon note the consolidation and joinder for trial, and shall amend the caption and the court records accordingly, and (c) the Clerk of the Civil Court shall deliver to the New York County Clerk, as Clerk of the Supreme Court, New York County, all papers filed in the action entitled Rozenberg v Ijezie, pending in the Civil Court, New York County, under Civil Court Index No. CC-060225-22/NY, and certified copies of all minutes and entries.

This constitutes the Decision and Order of the court.

1/30/2024 $SIG$ DATE JOHN J. KELLEY, J.S.C. MOTION: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

□ REFERENCE CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT CROSS MOTION: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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