1036 Park Corp. v. Rubin

92 A.D.2d 452, 458 N.Y.S.2d 595, 1983 N.Y. App. Div. LEXIS 16640

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1983
• Status: Published

Opinion

— Judgment, Supreme Court, New York County (Leonforte, J.), entered July 27,1982, dismissing the complaint, unanimously reversed, on the law, without costs. Order, Supreme Court, New York County (Leonforte, J.), entered June 3, 1982, denying plaintiff’s motion for summary judgment and granting defendants’ cross motion for summary judgment, unanimously reversed, on the law, motion granted, action in chief severed, and defendants’ cross motion denied, with costs. The plaintiff owns the building located at 1036 Park Avenue. The defendants own the shares for apartment 2-E in that building. Article II, paragraph Fourth of the proprietary lease subjects the lessees to the “house rules”. Paragraph “Eighteen” of the “house rules” provides that: “No dogs shall be kept or harbored in the building, unless the same in each instance be expressly permitted in writing by the Lessor”. The plaintiff has brought this action for a permanent injunction to prohibit defendants from keeping a dog. The defendants admit that they have maintained a dog without permission but-they state that other residents in the building also maintain dogs. In the past, we have found no merit to a defense based upon the selective enforcement of a provision prohibiting dogs. Likewise, we have rejected similar defenses based upon both waiver and estoppel (Mutual Redevelopment Houses v Balducci, 37 AD2d 943; 930 Fifth Corp. v King, 40 AD2d 140, opp dsmd 31 NY2d 1046). In short, Special Term should have granted plaintiff’s motion for summary judgment permanently enjoining defendants from keeping their dog (Hillman Housing Corp. vKrupnik, 40 AD2d 788). In accordance therewith, the action in chief should have been severed from defendants’ counterclaims. Concur — Murphy, P. J., Ross, Bloom, Milonas and Alexander, JJ.