Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about November 21, 2011, which, in this action seeking, among other things, a declaration that plaintiff is a rent-stabilized tenant in the subject apartment, granted plaintiffs motion to remove a summary holdover proceeding between the parties pending in Civil Court and to consolidate it with this action, and denied defendant’s cross motion to dismiss the complaint in this action, affirmed, without costs.
Plaintiff Martin Murphy, who resided with his brother in a rent-stabilized apartment, was asked to move into a basement apartment by defendant 317-319 Second Realty LLC’s predecessor, Jelstone Realty Corp., and to become the building superintendent in 2003. Murphy avers that Jelstone agreed that the rent-stabilized status of his former apartment would be transferred to the apartment at issue here. The rent-regulated lease of the former apartment contained a provision foreclosing assertion of counterclaims in proceedings to recover the premises.
When Murphy moved into the basement apartment, it had
[444] been severely damaged by fire. The then-parties agreed that Murphy would renovate and rehabilitate the apartment in exchange for a “substantial rent credit.” Murphy claims that the cost of renovating the apartment (including his own labor) exceeded $100,000.
On December 10, 2010, 317-319 acquired the building from Jelstone, and Jelstone notified Murphy that at the new owner’s request, it was terminating Murphy’s employment. On December 22, 2010, 317-319 commenced a summary holdover proceeding in Civil Court alleging that Murphy’s rights to occupy the apartment ended upon his termination as superintendent. Murphy moved to dismiss claiming that he was a long-term rent-regulated tenant, and countered that 317-319 was unjustly enriched by his expenditures to renovate the apartment. Civil Court denied Murphy’s dismissal motion, concluding that there was a question of fact concerning his rent-regulated (or lease-controlled) status, but, curiously, dismissed his counterclaim for unjust enrichment, finding that the lease (which 317-319 denied applied) barred Murphy from asserting counterclaims in a holdover proceeding. The court held that Murphy must assert such claims in a separate proceeding.
Murphy then commenced a separate proceeding in Supreme Court seeking a declaration that he is a rent-stabilized tenant, and claiming unjust enrichment, breach of the warranty of habitability, and “illegal construction”; he also moved to consolidate the Civil Court proceedings with the Supreme Court action. The illegal construction and breach of warranty claims relate to a ceiling collapse and a rupture of a sewer line adjacent to the apartment, which Murphy claims rendered the apartment uninhabitable in 2011. Upon motion, Supreme Court consolidated the Civil Court proceeding with this action since the issue of Murphy’s rent-regulated status was being litigated in both courts.
While ordinarily there is a “strong preference” for resolving holdover proceedings in Civil Court (44-46 W. 65th Apt. Corp. v Stvan, 3 AD3d 440, 441 [2004]), particularly where complete relief is available in that court (Post v 120 E. End, Ave. Corp., 62 NY2d 19, 28 [1984]), where, as here, complete relief cannot be afforded by Civil Court because that court dismissed the counterclaim, and common questions of law and fact exist, judicial economy is served by consolidation (Phoenix Garden Rest. v Chu, 202 AD2d 180 [1994]; Kally v Mount Sinai Hosp., 44 AD3d 1010 [2007]). It is undisputed that in the lease that Murphy asserts was “transferred” to the subject apartment, he agreed not to interpose counterclaims in a summary proceeding.
[445] Based on that, Civil Court dismissed the counterclaim for unjust enrichment. If Civil Court were to determine that the apartment is not rent regulated and thus that the lease does not apply, it would have been error to dismiss the counterclaim. Thus, consolidation of the proceedings in Supreme Court would avoid such an occurrence.
Since a decision to consolidate is addressed to the sound discretion of the trial court, where, as here, there are common questions of law and fact, Supreme Court did not improvidently exercise that discretion (Best Price Jewelers.Com, Inc. v Internet Data Stor. & Sys., Inc., 51 AD3d 839 [2008]). Moreover, maintaining separate actions poses a risk of inconsistent verdicts concerning the status of the parties. Thus, Supreme Court did not abuse its discretion by removing the summary holdover proceeding and consolidating it with this action. Removal to Supreme Court to determine all issues, including the request for a declaratory judgment, renders moot the motion to dismiss that claim pursuant to CPLR 3211 (a) (4).
317-319 also avers that the unjust enrichment claim should be dismissed because it is based on events occurring under the prior owner. However, to establish unjust enrichment it is not necessary that the party enriched have been in complete privity with the plaintiff; rather, the relationship between the parties must not be too attenuated (Georgia Malone & Co., Inc. v Rieder, 86 AD3d 406, 408 [2011]) and the plaintiff must show that it is against equity and good conscience to permit the other party to retain what is sought to be recovered (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011]). Here, the relationship between the current owner and the prior owner, and the liabilities assumed during the transfer of ownership, should be explored before a determination as to the unjust enrichment claim can be made. Furthermore, if there is a valid claim for unjust enrichment, it is the current owner who would benefit from the improvements. For that reason, the unjust enrichment claim should not be dismissed at this time. Concur — Tom, J.P., DeGrasse, Freedman and Richter, JJ.
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