Phoenix Garden Restaurant, Inc. v. Chu

202 A.D.2d 180, 608 N.Y.S.2d 205

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 1994
• Status: Published

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Beverly S. Cohen, J.), entered June 1, 1993, which, inter alia, denied appellants’ cross motion for use and occupancy pendente lite without prejudice, refused to direct the posting of an undertaking, and consolidated this action with a summary proceeding in Civil Court, New York County; and an order of the same court and Justice, entered November 29, 1993, which denied appellants’ motion for renewal, unanimously affirmed, with costs.

Because the construction and renovation work of the landlord rendered the premises uninhabitable, which action was tantamount to an eviction, and appellants did not submit reports from municipal inspectors that the premises were safe to enter, the court properly denied the landlord use and occupancy without prejudice to the right to amend the petition in the summary proceeding. As the court denied plaintiff injunctive relief, no undertaking was required (CPLR 6312 [b]). Finally, consolidation was proper to avoid unnecessary duplication of trials, save unnecessary costs, and prevent the possibility of injustice arising from divergent decisions based on the same facts (CPLR 602; Chinatown Apts. v New York City Tr. Auth., 100 AD2d 824, 825). Concur — Rosenberger, J. P., Ellerin, Kupferman, Nardelli and Williams, JJ.