Kanner v. West 15th Street Owners, Inc. ( 1997 )

—Order, Supreme Court, New York County (Stephen Crane, J.), entered on or about October 11, 1995, which denied plaintiff’s motion for, inter alia, a Yellowstone injunction enjoining defendant cooperative corporation from terminating her proprietary lease based upon her failure to pay certain assessments, and tolling and staying her time to cure same during the pendency of her action for breach of the warranty of habitability, unanimously affirmed, without costs.

The motion court properly denied plaintiff’s request for Yellowstone relief as unnecessary in view of the 10-day cure period available in RPAPL 753 (4) should defendant commence a summary proceeding based upon plaintiff’s failure to pay the assessments (see, Post v 120 E. End Ave. Corp., 62 NY2d 19, 27). Denial of plaintiff’s request to stay her obligation to pay the subject assessments pending determination of her action for breach of warranty of habitability was also proper, where withholding the assessments would jeopardize the funding for the construction project that is necessary to save the building from sinking. Should it be determined in the underlying action that plaintiff has been over-assessed, or is entitled to an abatement, a monetary adjustment can be made at that point. Concur—Milonas, J. P., Ellerin, Nardelli and Tom, JJ.