Lun Far Co., Inc. v. Aylesbury Associates
| Decision Date | 21 November 1972 |
| Citation | 40 A.D.2d 794,338 N.Y.S.2d 84 |
| Parties | The LUN FAR COMPANY, INC., Plaintiff-Respondent, v. AYLESBURY ASSOCIATES et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
R. E. Goldman, New York City, for plaintiff-respondent.
A. Blumstein, New York City, for defendants-appellants.
Before NUNEZ, McNALLY, TILZER, EAGER and CAPOZZOLI, JJ.
Order of the Supreme Court, New York County, entered on July 19, 1972, granting plaintiff's motion to consolidate a summary proceeding, instituted by appellant, Aylesbury Associates, against respondent, with plaintiff's Supreme Court action for a declaratory judgment, and denying defendant's motion for an order pursuant to CPLR 2201 staying all proceedings in the action in the Supreme Court pending determination of the summary proceeding brought in the Civil Court, County of New York, reversed, on the law, the facts and in the exercise of discretion, without costs and without disbursements, the motion to consolidate denied, and defendant's motion for a stay granted.
Our legislature has recognized the advisability of using the established facilities of the Civil Court in this type of proceeding. Section 204, Civil Court Act; 3505 Realty Corp. v. Weinberger, 41 Misc.2d 254, 245 N.Y.S.2d 150; Antique & Period Furniture Co., Inc. v. Lassandro, 40 Misc.2d 635, 243 N.Y.S.2d 711. Implicit in the consolidation is the stay of the summary proceeding. Unless it clearly appears that relief sought is unavailable in the summary proceeding, its prosecution should not be stayed. Neuman v. Namposa Realty Corp., Sup. 119 N.Y.S.2d 835. The Civil Court has jurisdiction of the tenant's defense based on so-called reformation grounded on an executed oral modification of the lease provisions for termination at the landlord's option. We are not called upon to decide respondent's claim at this time. The Civil Court has jurisdiction to decide the issues here involved. There is no equitable or other basis for removing the summary proceeding from the Civil Court where a prompt and expeditious determination may be had. The ends of justice are always promoted by the speedy trial of an action. Slavin v. Whispell, 5 A.D.2d 296, 171 N.Y.S.2d 892; Mills v. Sparrow, 131 App.Div. 241, 115 N.Y.S. 629.
All concur except NUNEZ, CAPOZZOLI, JJ., who dissent in the following memorandum by CAPOZZOLI, J.:
I dissent and vote to affirm for the reasons stated by the Court below.
However, I would direct an...
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Piccione's Estate, Matter of
...to interpret it as to intend the fragmentation of the treatment of the affairs a decedent's estate (cf. Lun Far Co. v. Aylesbury Assoc., 40 A.D.2d 794, 338 N.Y.S.2d 84). Fundamentally, of course, statutes are not to be interpreted to curtail constitutionally based jurisdiction (People ex re......
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Cox v. J.D. Realty Associates
...v. 120 East End Ave. Corp., 62 N.Y.2d 19, 28, 475 N.Y.S.2d 821, 464 N.E.2d 125 [Yellowstone injunction], citing Lun Far Co. v. Aylesbury Assoc., 40 A.D.2d 794, 338 N.Y.S.2d 84). As Post goes on to note, "If the tenant is unable to obtain complete relief in Civil Court, then the jurisdiction......
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Long Island Family Medical Group v. Zimmerly, 2009 NY Slip Op 31326(U) (N.Y. Sup. Ct. 6/12/2009)
...County District Court cannot provide complete relief between the parties in the proceeding pending before it (see, Lun Far Co. v. Aylesbury, 40 A.D.2d 794, 338 N.Y.S.2d 84). Further, the Plaintiffs cannot use an action commenced in Supreme Court as a device to obtain an injunction against p......
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Sambula v. Modi Realty Inc.
...where Civil Court is without authority to grant the relief sought should the prosecution of a summary proceeding be stayed (Lun Far Co. v Aylesbury Assocs., supra; Glen Briar Co. v Silberman, 129 Misc.2d 439, notwithstanding that the Supreme Court action may have preceded commencement of th......