Index No: PRESENT: HON. LEONARD B. AUSTIN Justice of the Supreme Court. Submission Date: 5 - l-00. Motion IUD: 5-l -00

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1 L SUPREME COURT - STATE OF NEW YORK I.A.S. PART 28 - NASSAU COUNTY Index No: PRESENT: HON. LEONARD B. AUSTIN Justice of the Supreme Court Motion IUD: 5-l -00 Submission Date: 5 - l-00 Motion Sequence No.:OOl/MOT D ICE COLD INC. and ISAAC YAMALI, Plaintiffs, - against- VINCENT FERNICOLA, ANNA FERNICOLA a/k/a ANNA MARIE MESSINA, CJ & VINNIES CORP., TIMOTHY PASTOR and MTFI EQUITIES, INC., Defendants, Attomev for Plaintiffs Steven D. Kutner, Esq. Kutner & Gurlides, Esqs. 300 Old Country Road - Suite 3 11 Mineola, New York Attomev for Defendants Glenn J. Ingoglia, Esq. Bliven & Ingoglia, Esqs. 30 Parma Road Island Park, New York (For MTFI Equities, Inc.) Bany R. Feerst, Esq. 139 East 231d Street New York, New York (For Vincent Femicola, Anna Femicola a/k/a/ Anna Marie Messina, CJ & Vinnies Corp.) Upon the following papers read on Plaintiff s motion pursuant to CPLR 602 (b) seeking consolidation of an action pending in this Court and a summary proceeding pending in the District Court of Nassau County: Plaintiffs Order to Show Cause; Affirmation of Steven D. Kutner, Esq. and supporting papers; Affirmation of Glenn J. Ingoglia, Esq. in opposition., 1

2 Index No l-99 Backsroun d On November 29, 1999, Plaintiffs commenced this action for fraud, misrepresentation, for reformation -of the lease and for a declaration that Plaintiff is entitled to occupy premises known as 4216 Austin Boulevard, Island Park. At the center of this dispute is a lease between Plaintiff Ice Cold, Inc. ( Ice Cold ) and Defendants Vincent Fernicola ( Fernicola ) and Anna Marie Messina ( Messina ) dated March 1, In that lease, Fernicola and Messina represent and claim that they are the landlords of the subject premises. Contrary to the affirmative claims of Femicola and Messina, Defendant MTFI Equities Inc. ( MTFI ) is the title owner of the property. If this Court determines that the lease is valid then Ice Cold, will have the right to occupy the premises until February 28, On April 13, 2000, MTFI commenced a summary proceeding in the District Court of Nassau County captioned MTH Equities, Inc., Petitioner against Vincent Fernicola and Anna Fernicola, Respondents-Tenants/Ice Cold, Inc., Respondent-Undertenant. Significantly, on March 24, 2000, MTFI was served with process in this action and elected to bring the foregoing summary proceeding inthe District Court. MTFI has not yet answered in the action before this Court. This Court is now asked to remove the District Court summary proceeding to this Court and consolidate it with this action. Discussion CPLR 602 (b) provides that where an action is pending in the Supreme Court, it, 2

3 Index No / may, upon motion, remove to itself an action pending in another court and consolidate it or have it tried jointly with that in the Supreme Court. Consolidation generally requires common questions of law or fact. There is, however, a strong policy against staying a summary proceeding or removing it, such as for purposes of a consolidation or joint trial with an action in the Supreme Court. See, Cohen v. Goldfein, 100 A.D. 2d 795, 474 N.Y.S. 2d 519 (lst Dept. 1984) Nevertheless, where a summary proceeding and plenary action involve common questions of law and fact, in the interest of judicial economy, the matter should be consolidated in the Supreme Court. Benniqan s of New York, Inc. v. Great Neck Plaza, L.P., 223 A.D. 2d 615, 636 N.Y.S. 2d 835 (2nd Dept. 1996); and Decastro v. Bholari, 201 A.D. 2d 382, 607 N.Y.S. 2d 348 (lst Dept. 1994). Here, common questions of both law and fact exist which require, in the interest of judiciary economy be tried together. Certainly, the rights of the parties vis-a-vis the right to the use and occupancy of the premises pervade both the summary proceeding and this action. In order to assure a consistent result, the motion should be granted; Therefore, it is, ORDERED, that, pursuant to CPLR 602, the action pending in the District Court of the County of Nassau under the caption MTFl Equities Inc., Petitioner against Vincent Fernicola and Anna Marie Fernicola, Respondents-Tenants/Ice Cold Inc., Respondent-Undertenant under Index number SP 1730/00 is hereby removed to this / 3 _ _

4 Index No. 293 fi-99 Court and consolidated with Index No and it shall be treated as a third party action; and it is further,. ORDERED, that counsel are directed to appear on June 19,200O at 9:30 a.m. for a preliminary conference. ORDERED, that the caption of this matter shall be: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ICE COLD INC. and ISAAC YAMALI, Plaintiff, Index No /99 - against - VINCENT FERNICOLA and ANNA FERNICOLA a/k/a ANNA MARIE MESSINA, CJ & VINNIES CORP. and TIMOTHY PASTOR and MTFI EQUITIES INC., MTFI EQUITIES INC., Defendants, Petitioner Index No. (To be assigned) - against - VlNdENT FERNICOLA and ANNA FERNICOLA, Respondents-Tenants ICE COLD INC., Respondent-Undertenant 4

5 Index No l-99 The clerk of this Court is directed to modify the docket of this action to reflect the foregoing; and it is, ORDERED, that Plaintiffs shall obtains an index number for the now consolidated third party action prior to the conference scheduled on June 19, 2000; and it is, ORDERED, that the Clerk of the District Court is directed to transfer the file titled: MTFI EQUITIES, INC. Petitioner, Index number SP against - VINCENT FERN/COLA and ANNA FERN/COLA Respondent-tenant, ICE COLD, INC. Respondent-undettenanf To the Clerk of the Supreme Court under index number 29371/99. This constitutes the decision and Order of the r-t. Dated: Mineola, NY June 5,200O _