Mannis v. Jillandrea Realty Co. ( 1983 )

— Order of the Supreme Court, New York County (Stecher, J.), entered on October 12, 1982, which granted plaintiff tenant’s motion for a preliminary injunction and denied defendants landlords’ cross motion for an order dismissing the complaint, is reversed, on the law, without costs or disbursements, plaintiff’s motion for a preliminary injunction is denied and defendants’ cross motion to dismiss the complaint is granted. Defendant Jillandrea Realty Associates (improperly designated Jillandrea Realty Co. in the caption) is the owner and landlord of a building at 310 West 85th Street in Manhattan. Plaintiff David Mannis is the tenant of apartment 8C in said building pursuant to his most recent lease dated October 14, 1981, which had a term commencing on December 1, 1981 and ending on November 30, 1984. On or about July 26,1982, defendant Jillandrea served plaintiff with a notice to cure alleging that the tenant had violated the terms of his lease in that persons other than the tenant or members of his immediate family were occupying the apartment, and that all or a portion of the apartment had been sublet, assigned, or otherwise permitted to be occupied by such unknown person or persons. The notice to cure required the breach to be cured on or before August 9, 1982, and by subsequent letter agreement, the tenant was given an extension of time in which to cure, until August 16,1982. On August 13,1982, the tenant commenced the instant action for a declaratory judgment in which he sought, inter alia, injunctive relief prohibiting the landlord from terminating his tenancy, from instituting summary proceedings to dispossess plaintiff, and from disturbing plaintiff’s possession of his apartment in any way. Plaintiff moved by order to show cause for a preliminary injunction enjoining the landlord pending determination of the action from terminating his lease or from instituting summary proceedings against him. Defendants cross-moved for an order dismissing the complaint based upon improper service. Plaintiff asserts upon appeal that he had been on a business assignment and his girlfriend was apartment-sitting during a brief period. This business assignment has now terminated according to him, and his girlfriend has returned to her own home and he has now resumed the full and exclusive use and occupancy of his apartment. Upon these facts, conceded by him, the tenant does not appear to be threatened with eviction at this time. Reversal is mandated because relief was available, on the instant facts and the circumstances present herein, in the Civil Court under RPAPL 753 (subd 4). Thus, the injunctive relief should have been denied and the cross motion to dismiss the complaint granted on that ground. In view of this result, there is no reason for us to reach the ground of improper service advanced by defendants upon their cross motion. However, it is important to note that when the Legislature enacted this recent statute, it apparently did not intend to eliminate completely the availability of relief in the Supreme Court, in certain situations, pursuant to First Nat. Stores v Yellowstone Shopping Center (21 NY2d 630). Yellowstone relief may still survive, for instance, where a tenant requires affirmative equitable relief and where the Civil Court lacks the wide equitable powers to fashion such affirmative relief. The Court of Appeals recognized in Yellowstone that there may be circumstances where it is necessary and appropriate that a tenant seek the broad equitable powers of the Supreme Court to treat with a complex issue (clearly not present in the instant case), in which the jurisdiction or competence of the Civil Court, because of calendar congestion and the summary nature of the proceeding, is lacking (see First Nat. Stores v Yellowstone Shopping Center, supra, at p 637). Regretfully, in an amendment of this significance, the purpose of RPAPL 753 (subd 4) is not expressed in any official legislative memorandum. Absence of such a memorandum has led to confusion in the interpretation of subdivision 4 by the trial courts (see, e.g., Schuller v D’Angelo, 117 Misc 2d 528). The case before us, however, is inappropriate for an in-depth analysis of this important legislation, including its effect upon the renewability of leases. Concur — Ross, Asch and Alexander, JJ.