Barak v. 28 E. 6262 Realty Corp.

70 A.D.2d 543, 416 N.Y.S.2d 599, 1979 N.Y. App. Div. LEXIS 11918

Opinion

—Order, Supreme Court, New York County, entered January 22, 1979, denying plaintiffs’ motion for an order enjoining defendant, pendente lite, from continuing to prosecute a summary proceeding for nonpayment of rent and for consolidating that summary proceeding pending in the Civil Court with the instant action, unanimously modified, on the law, and in the exercise of discretion, to the extent of reversing the denial of that branch of plaintiffs’ motion seeking consolidation; plaintiffs’ motion for consolidation is granted, and, as so modified, affirmed, without costs and disbursements. Plaintiffs, lessees of a condominium apartment at 641 Fifth Avenue, owned by defendant, instituted the instant action in the Supreme Court claiming they paid all rent due under the lease and duly notified the defendant of their intention to exercise the option, contained in the lease agreement, to purchase the apartment, but that defendant failed to honor the option. They seek, in addition to damages, an order directing defendant to perform the agreement. After this action was instituted, defendant commenced a summary proceeding in Civil Court based on nonpayment of one month’s rent. The relief of specific performance of the option to buy is not available in the Civil Court and thus the disposition of the summary proceeding in the Civil Court would not dispose of all issues as to plaintiffs’ rights under the lease. Under these circumstances, reason and proper procedure mandate that the summary proceeding be consolidated with the Supreme Court action wherein plaintiffs seek, inter alia, specific performance of the option. The issue of the propriety of the denial of injunctive relief to plaintiffs is not pressed on appeal and consideration of same is obviated by the relief directed herein, to wit, consolidation of the proceeding with the instant action. Concur—Murphy, P. J., Sullivan, Bloom, Lane and Lupiano, JJ.