Katz v. Swift , 387 N.Y.S.2d 275 ( 1976 )

— In an action inter alia to enjoin defendants from pursuing their program to upgrade incinerators in private buildings until such standards are imposed upon buildings owned by the defendant city, defendants appeal from an order of the Supreme Court, Kings County, dated July 31, 1975, which, inter alia, (1) denied their cross motion to dismiss the complaint and (2) granted plaintiff’s motion for a preliminary injunction. Order affirmed, with $50 costs and disbursements, and plaintiff is directed to notice this case for trial forthwith, and thereupon the case should be preferred for trial. The allegations of the complaint state a cause of action to which a defense upon documentary evidence has not been established. The claim of improper form is not a ground for dismissal (CPLR 103, subd [c]). Finally, we have considered the argument that plaintiff has failed to exhaust administrative remedies and find it to be without merit. Hopkins, Acting P. J., Margett, Damiani, Shapiro and Titone, JJ., concur.