Finkelman v. Finkelman

105 A.D.2d 771, 481 N.Y.S.2d 715, 1984 N.Y. App. Div. LEXIS 20893

Opinion

In an action for a declaratory judgment and injunctive relief concerning the rights to the shares and lease to a cooperative apartment, defendant Hyman Finkelman appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Goldstein, J.), dated March 5, 1984, as, upon reargument, adhered to its original determination granting plaintiff’s motion for a preliminary injunction.

Order affirmed, insofar as appealed from, with costs.

Special Term did not abuse its discretion in preserving the status quo at this stage of the proceeding. Many pertinent issues of fact need elaboration through completion of pleadings and pretrial discovery. Depending on the ultimate facts established, plaintiff might prove her right to the title or a constructive trust to the apartment she occupied until 1974 and the share appurtenant thereto, and thereby to the apartment in which she has resided since. We venture no belief as to the merits. However, there are sufficient issues of fact to justify the issuance of an injunction to preserve the status quo pending a determination on the merits, since the primary issue is title which cannot be fully adjudicated in a summary proceeding (Rasch, NY Landlord & Tenant, Summary Proceedings, § 1355; see O’Frias v Melton, 32 AD2d 1046, affd 27 NY2d 638). Mangano, J. P., Gibbons, O’Con-nor and Brown, JJ., concur.