Excelsior-57th Corp. v. Feinberg

68 A.D.2d 863, 414 N.Y.S.2d 699, 1979 N.Y. App. Div. LEXIS 11081

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 1979
• Status: Published

Opinion

Order, Supreme Court, New York County, entered August 4, 1978, dismissing the complaint and denying leave to replead, reversed, on the law, and the motion to dismiss denied, with costs. The plaintiff-appellant landlord alleges that two tenants have erected penthouses on the roof of the co-operative apartment building on East 57th Street in Manhattan, and that one of the tenants has restricted the use of the swimming pool on the roof for his own purposes. Further it is alleged that the holder of a long-term sublease for commercial space in the building is operating the garage in the building primarily for transient parking, and is also operating a restaurant, in violation of the certificate of occupancy. The building in question is a cooperative residential building as to a portion thereof, with commercial space as to the remainder. The motion here is to dismiss the complaint for failure to state a cause of action. (CPLR 3211, subd [a], par 7.) The complaint seeks equitable relief. For purposes of the motion all allegations of the complaint and inferences therefrom must be deemed true. (Cohn v Lionel Corp., 21 NY2d 559, 562; see, also, Guggenheimer v Ginzburg, 43 NY2d 268, 275; Edwards v Codd, 59 AD2d 148, 149.) The court at Special Term dismissed the complaint on the ground that there was an adequate remedy at law. It cannot be said that there is an adequate remedy at law with respect to the claims made and the violations complained of. Concur—Murphy, P. J., Kupferman, Sullivan, Lane and Lupiano, JJ.