Lindholm v. Wiener
| Decision Date | 06 March 1984 |
| Citation | 472 N.Y.S.2d 647,99 A.D.2d 955 |
| Parties | Ronald B. LINDHOLM et al., Plaintiffs-Respondents, v. Joel S. WIENER a/k/a Loft Realty Co., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
R.S. Hartman, New York City, for plaintiffs-respondents.
K.M. Block, New York City, for defendant-appellant.
Before MURPHY, P.J., and ROSS, CARRO, FEIN and KASSAL, JJ.
Order, Supreme Court, New York County, entered April 1, 1983 denying defendant's motion pursuant to CPLR 3120, for an order allowing him or his representative to enter plaintiffs' loft for the purpose of inspecting and photographing the premises affirmed, with costs.
The defendant is the owner of a commercial loft building located at 49 West 27th Street, Manhattan. Plaintiffs are tenants in one of the lofts in the building. In mid-1982 plaintiffs commenced an action together with an application for a preliminary injunction to enjoin defendant landlord from cutting off the water supply in plaintiffs' loft and to compel the landlord to restore water services. In connection with the settlement of that action, defendant visited the loft and conducted an inspection. There followed a dispute between the parties relating to heat and hot water services. By order to show cause, plaintiffs moved for a permanent injunction requiring defendant to restore gas services for heating purposes and sued for damages and attorney's fees. Defendant cross-moved seeking a stay pending determination by the City of New York Loft Board on the ground that "jurisdiction of that agency has been evoked by plaintiffs and is the proper forum for resolution of the dispute". Shortly after the commencement of the action, defendant's request for permission to visit the loft and to inspect it was granted. Defendant again conducted an extensive inspection and investigation of the premises.
On October 28, 1982 Special Term rendered a decision holding the motion and cross-motion in abeyance pending determination at a preliminary hearing of designated issues. Plaintiffs then consented to the defendant's cross-motion to stay the action pending determination of the issues by the Loft Board pursuant to Article 7-C of the Multiple Dwelling Law (The "Loft Conversion Law"). Thereafter, on February 2, 1983, at defendant's request, plaintiffs permitted another examination and inspection of their premises conducted by defendant and another member of his family. Thus, there had been three inspections of plaintiffs' premises within a period of six or seven months, one prior to the commencement of the action and two while the action was pending. Notwithstanding these inspections, defendant moved to compel plaintiffs to permit the inspection and photographing pursuant to CPLR 3120. The order appealed from properly denied such inspection and photographing.
The pending action is one to require defendant to restore gas services for heating purposes and for damages including attorney's fees. No reason appears why a fourth inspection and photographing is required for purposes of issues in this action. Moreover, the action appears to have been stayed pending proceedings before the Loft Board. There was no abuse of discretion in denying the application. An additional inspection and photographing are hardly necessary to defend this action.
The dissent's reliance upon J. Marcus & Sons, Inc. v. Federal Insurance Company, 24 A.D.2d 922, 264 N.Y.S.2d 676 is misplaced. In that case there had been an inspection prior to the commencement of suit. Here there was one inspection prior to suit and two more while the suit has been pending, all within six or seven months, which is surely sufficient.
To the extent that the further inspection and photographing are sought for purposes of the proceeding before the Loft Board, inspection...
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