Street of Shops, Inc. v. Clifford , 244 N.Y.S.2d 858 ( 1963 )

— Order unanimously reversed, without costs of this appeal to either party and motion granted, without costs. Memorandum: In the exercise of a proper discretion Special Term should have granted the application to remove to Supreme Court and try jointly with this action the summary proceeding pending in County Court. In the absence of a complaint in the Supreme Court action we assume that it will contain allegations similar to those found in the answer in the summary proceeding except that requested relief will be for rescission of the lease as well as for money damages. Upon this assumption we find identity of factual issues. If either party applies for a preference the motion should be granted. The trial of the summary proceeding should not be delayed by pretrial proceedings. We do not reach or pass upon the question of the jurisdiction of County Court to entertain in the summary proceeding a counterclaim seeking equitable relief for rescission of the lease. (Appeal from an order of Monroe Special Term denying plaintiff’s motion under subdivision (b) of section 602 of the Civil Practice Law and Buies to remove the County Court action and either consolidate or join it for trial with the Supreme Court action.) Present — Williams, P. J., Bastow, MeClusky, Henry and Noonan, JJ.