LRHC Flatbush, N. Y., L. L. C. v. Aftor T. Realty, Inc. , 722 N.Y.S.2d 910 ( 2001 )

—In an action, inter alia, to recover damages for breach of a lease, the defendant appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated August 8, 2000, which granted the plaintiffs motion to remove a summary nonpayment proceeding entitled Aftor T. Realty v LRHC Flatbush, N. Y., pending in the Civil Court, Kings County, under Index No. 68390/00, to the Supreme Court, Kings County, and to consolidate that proceeding with the instant action.

Ordered that the order is reversed, on the law, with costs, and the motion is denied; and it is further,

Ordered that the Clerk of the Supreme Court, Kings County, is directed to deliver to the Clerk of the Civil Court, Kings County, the file in Aftor T. Realty v LRHC Flatbush, N. Y.

The Supreme Court erred in directing that the summary nonpayment proceeding be consolidated with the instant action. The parties’ lease provided that if the appellant began any summary proceeding for possession of the premises, the respondent “will not interpose any counterclaim” in the summary proceeding. “This provision of the lease may not be circumvented by consolidating the summary proceeding with the Supreme Court action” (107-48 Queens Blvd. Holding Corp. v ABC Brokerage, 238 AD2d 557; see, Titleserv, Inc. v Zenobio, 210 AD2d 310; Mid-Island Shopping Plaza Co. v Cutler, 112 AD2d 405). Bracken, P. J., S. Miller, McGinity and Schmidt, JJ., concur.