Kabasso v. Bruce Supply Corp. , 431 N.Y.S.2d 546 ( 1980 )

In an action for a declaratory judgment and money damages due to defendant’s breach of a lease agreement, plaintiff appeals from an order of the Supreme Court, Kings County, dated May 23, 1980, which, upon defendant’s motion for reargument, inter alia, modified a prior order of the same court which unconditionally granted consolidation of the instant action with a Civil Court dispossess proceeding, by requiring plaintiff to pay into court the current rent as well as the current real estate taxes. Order modified by deleting therefrom the paragraph beginning with the words "The condition” and ending with the words "the premises”, and substituting therefor the following: "As a condition precedent to the requirement that plaintiff pay rent and taxes, defendant shall execute forthwith all of the required documents to enable the plaintiff to obtain a certificate of occupancy for the premises. In the event of the defendant’s failure to do so, the order of consolidation is granted unconditionally.” As so modified, order affirmed, without costs or. disbursements. Defendant’s time to execute the required documents is extended until 20 days after service upon it of a copy of the order to be made hereon, together with notice of entry thereof. In accordance with the consent of the parties on argument, a trial should be held forthwith, upon the order of consolidation becoming effective. Special Term did not abuse its discretion in granting the order of consolidation on the conditions imposed. However, Special Term did not adequately provide for defendant’s failure to execute all of the required documents to enable plaintiff to obtain a certificate of occupancy for the premises. Damiani, J. P., Gibbons, Gulotta and Martuscello, JJ., concur.