East 4th Street Garage, Inc. v. Estate of Berkowitz

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered April 1, 1999, which, inter alia, granted defendant Kalodop II Park Corp.’s motion for retroactive use and occupancy pending determination of this action, and order, same court and Justice, entered June 8, 1999, which denied plaintiffs motion to discontinue the action and ordered the case to proceed to trial, unanimously affirmed, with costs.

The court properly exercised its discretion in awarding defendant Kalodop II Park Corp. use and occupancy during the pendency of this action (see, 61 W. 62nd Owners Corp. v Harkness Apt. Owners Corp., 173 AD2d 372, lv dismissed 78 NY2d 1123). Any remedy to which plaintiff is entitled for errors in the assessment of use and occupancy against it would most appropriately be obtained by means of a speedy trial of the action; if plaintiffs claims of error are there found to possess merit, it may be provided with a refund or rent credit.

The court also properly exercised its discretion in denying plaintiffs motion for an order discontinuing the litigation, despite the agreement of plaintiff and Kalodop’s predecessor in interest to do so. The court properly noted the existence of special circumstances warranting the motion’s denial, namely, that after intervening in this action, Kalodop’s application for arbitration of the amount of rent due was stayed based, inter alia, upon plaintiffs assertion that the rent issue was before the court, and the fact that the action had been pending before the same Judge for some 17 months (see, Tucker v Tucker, 55 NY2d 378). Concur — Sullivan, J. P., Tom, Rubin, Saxe and Buckley, JJ.