McCabe v. Advent Properties, Inc.

89 A.D.2d 548, 453 N.Y.S.2d 185, 1982 N.Y. App. Div. LEXIS 17596

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 29, 1982
• Status: Published

Opinion

Order, Supreme Court, New York County (Evens, J.), entered on April 29, 1981, which granted the plaintiffs’ motion enjoining the defendant-appellant from interrupting or terminating customary essential services, and .denied defendant’s cross motion, which sought an order directing plaintiffs to deposit into court all past-due rents and rents to become due, and sought to enjoin a certain tenant from entering into residential occupancy of the subject premises, is unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of granting the defendant’s cross motion to direct plaintiffs to deposit into court all rents currently due and those to become due during the pendency of this action, within 60 days of date of this court’s order, and otherwise affirmed, without costs. If the plaintiffs or any one of the plaintiffs fail to comply with the order of this court, the defendant may then bring any appropriate action or proceeding, if so advised. For over two years, the plaintiffs, residential tenants in a commercial loft building, have withheld the payment of rent. The plaintiffs initially engaged in this strategy some five to six months prior to commencement of the instant action. On October 10, 1980, this action was commenced by service of an order to show cause for a preliminary injunction, coupled with a summons and complaint, which sought a permanent injunction and other related relief. The basis for this suit was that the defendant landlord had, it is alleged, cut back on certain essentials, such as elevator service and lighting. The defendant admittedly reduced elevator service but maintains that the full breadth of services has been restored since mid-October of 1980. In this posture, it would have been eminently more equitable to condition the grant of the application for an injunction on plaintiffs depositing with the court all past-due rents. (Corns v 129 Front Co., 85 AD2d 176.) Concur — Kupferman, J. P., Ross, Markewich, Lupiano and Asch, JJ.