Trump Village Section 3, Inc. v. Sinrod

In an action, inter alia, for a judgment declaring that the plaintiff has the power to "promulgate, enact and enforce the rules and regulations and the Occupancy Agreement set forth in [the] complaint”, the defendants appeal from (1) so much of an order of the Supreme Court, Kings County (Lodato, J.), dated August 21, 1987, as denied their cross motion for summary judgment dismissing the complaint, (2) so much of an order of the same court (Spodek, J.), dated April 5, 1990, as denied their motion to dismiss the action on the ground, inter alia, that it was commenced in an improper forum, (3) a memorandum decision of the same court (G. Aronin, J.), dated July 9, 1992, which, after a nonjury trial, directed the entry of a judgment in favor of the plaintiff and against them, and (4) an order and judgment (one paper) of the same court (G. Aronin, J.), dated December 23, 1992, which is in favor of the plaintiff and against them, among other things, declaring that "the plaintiff has the power to promulgate, enact and enforce the provisions of its Rules and Regulations * * * and Occupancy Agreement * * * prohibiting the keeping or haboring of dogs”.

Ordered that the appeals from the orders dated August 21, 1987, and April 5, 1990, are dismissed; and it is further,

Ordered that the appeal from the decision dated July 9,1992, is dismissed, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the order and judgment is affirmed, and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The appeals from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).

In July 1983, the defendants, who had resided in their cooperative apartment since 1970, began harboring a pet dog in their apartment. In January 1984 the plaintiff, the cooperative corporation which owns the building, brought this action for a judgment declaring that it has a right to enforce the no-pet policy contained in its Occupancy Agreement, By-Laws, and Rules and Regulations, and for a permanent injunction restraining and enjoining the defendants from violating the no-pet policy. The defendants contended, inter alia, that they had kept the dog openly and notoriously for more than three months with the knowledge of the plaintiff and/or its agents, and that pursuant to the Administrative Code of the City of New York § 27-2009.1 (former § D26-10.10), commonly known as the Pet Law, the plaintiff had waived its right to enforce the no-pet policy against them.

After a nonjury trial, the court held that the defendants had failed to establish that their possession of the dog in the apartment had been open and notorious and to the knowledge of the plaintiff and/or its agents.

We find, contrary to the defendants’ contentions, that this action was properly commenced in the Supreme Court. The plaintiff commenced this action for both a declaratory judgment and a permanent injunction. Since the New York City Civil Court cannot grant the injunctive relief sought by the plaintiff, the action was properly commenced in the Supreme Court (see, CCA 209 [b]; Manhattan Parking Sys.-Serv. Corp. v Murray House Owners Corp., 211 AD2d 534; DeCastro v Bhokari, 201 AD2d 382; Hotel New Yorker Pharmacy v New Yorker Hotel Corp., 40 AD2d 967).

We also find that the defendants failed to prove by a preponderance of the evidence that they had harbored the dog openly and notoriously for a period of more than three months. Rosenblatt, J. P., Altman and Hart, JJ., concur.