Peter Sims, as Trustee of Samuel A. Gadsby, Deceased, Respondent, v David Manley et al., Appellants.
— Order, Surrogate’s Court, New York County (Marie M. Lambert, S.), entered January 22, 1985, granting petitioner’s motion to transfer two summary proceedings pending in the Civil Court, New York County, to the Surrogate’s Court and to consolidate said proceedings with a proceeding for the discovery of assets pending in the Surrogate’s Court, reversed, on the law and on the facts and in the exercise of discretion, without costs or disbursements, the motion denied and the two summary proceedings returned to the Civil Court.
One of the two Civil Court proceedings at issue, a nonpayment proceeding, was commenced on or about August 9, 1984 by the trustee of the estate of Samuel A. Gadsby, who died in 1970 owning various pieces of residential property in Harlem. The estate has continued as landlord of these properties ever since. The petition alleged a failure to pay rent in the sum of $200 per month since March 1983. The tenant interposed a general denial and also asserted, inter alia, the defense of breach of warranty of habitability. A Housing Court Judge ruled preliminarily that he would not consider claims for rent prior to April 1984 because of the estate’s failure to register the premises with the Rent Stabilization Association. After the estate expressed dissatisfaction with the ruling and a desire to transfer the matter to the Surrogate’s Court, where a proceeding for the discovery of assets was pending, the proceeding was marked "off-calendar”, on consent, pending a determination by the Surrogate’s Court as to whether it would grant the estate’s application for transfer.