Kanter v. East 62nd Street Associates
Opinion of the Court
Order, Supreme Court, New York County (Allan Murray Myers, J.), entered December 7, 1984, granting plaintiff a preliminary injunction enjoining and restraining defendants, during the pendency of the action, from commencing an action or proceeding to evict plaintiff or from otherwise disturbing plaintiff’s tenancy, unanimously reversed, on the law, the facts and in the exercise of discretion, with costs and disbursements, and plaintiff’s motion for injunctive relief denied.
Although we agree that the complaint does state a justiciable controversy in terms of declaratory relief, we find no basis here for the issuance of a preliminary injunction. While it appears that no summary proceeding had been commenced in the Civil Court at the time the tenant brought this action, it is clear that plaintiff may obtain full redress when such a proceeding is brought in that court. In this case, the tenant commenced the Supreme Court action during the period of the landlord’s 30-day notice, which precluded any action by the landlord to initiate summary proceedings in the Civil Court. RPAPL 753 (4), effective July 29, 1982, affords a tenant in a residential dwelling a 10-day period to cure or correct any breach by staying issuance of a warrant following trial of a summary proceeding. On such trial, the claims by plaintiff here that, inter alia, the apartment was his primary residence and the landlord waived any right to refuse to renew the lease can be fully resolved.
Contrary to the holding at Special Term, under the circumstances, we perceive no need for the issuance of an injunction to maintain the status quo since the tenant may obtain full relief in the Civil Court by defending any summary proceeding. In Post v 120 E. End Ave. Corp. (62 NY2d 19), the Court of Appeals construed RPAPL 753 (4) as authorizing the Civil Court to issue an injunction, precluding forfeiture of a lease upon the tenant’s curing any breach within the 10-day period. It was concluded
Recently, in Asherson v Schuman (106 AD2d 340), we discussed the impact of the Court of Appeals holding in Post (supra) in relation to the issuance of a Yellowstone injunction, concluding that only where a tenant was unable to obtain complete relief in the Civil Court could resort be had to the Supreme Court (see, Wilen v Harridge House Assoc., 94 AD2d 123; Brodsky v 163-35 Ninth Ave., supra; Mannis v Jillandrea Realty Co., 94 AD2d 676). Our observation in Asherson v Schuman (supra, p 342) is fully controlling here: “The holding in Post takes cognizance of the underlying policy which recognizes the desirability of resolving landlord-tenant disputes in the Civil Court, the preferred forum for a speedy disposition of such matters (Lun Far Co. v Aylesbury Assoc., 40 AD2d 794).” Concur — Ross, J. P., Lynch, Kassal and Rosenberger, JJ.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.