Childress v. Lipkis

72 A.D.2d 724, 443 N.Y.S.2d 63, 1979 N.Y. App. Div. LEXIS 13926

Opinions

Order, Supreme Court, New York County, entered May 18, 1979, denying plaintiffs’ motion for preliminary injunction, is affirmed, without costs. Plaintiffs tenants seek a preliminary injunction (a) tolling and staying the effect of a so-called 10-day notice to cure, dated January 10, 1979, and (b) enjoining the landlords from commencing summary proceedings in the Civil Court. In addition to serious disputed questions as to the ultimate rights of the parties, we think that the preliminary injunction was properly denied for these reasons: As to tolling the 10-day notice to cure, the alleged default is the occupancy by tenants of the premises for residential purposes. If this is indeed a default, there would be no practical way to cure this other than the tenants moving out. In the circumstances, there is no point to tolling the running of the 10-day period. If, on the other hand, the tenants are right and their occupancy is not a default, then there is nothing to cure. As to the branch of the injunction seeking to restrain the institution of holdover summary dispossess proceedings in the Civil Court, tenants can urge, at least in defense of those actions, their contentions by way of legal or equitable defenses. If for any reason it appears that the jurisdiction of the Civil Court will be inadequate to give the parties full relief, the parties can move to consolidate the Civil Court action with the present action in the Supreme Court for a declaratory judgment. (Cf. Barak v 28 E. 6262 Realty Corp., 70 AD2d 543.) We should not at this stage preclude landlords from choosing whatever forum they wish in which to bring their suit in the first instance. We note that on the oral argument defendants’ attorney conceded in personam jurisdiction over defendant Eliahu Lipkis. Concur—Murphy, P. J., Birns and Silverman, JJ.; Fein, J., dissents in a memorandum, and Bloom, J., dissents in part in a memorandum, as follows.