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1036 Park Corporation v. Rubin

Appellate Division of the Supreme Court of New York, First Department
Feb 1, 1983
92 A.D.2d 452 (N.Y. App. Div. 1983)

Opinion

February 1, 1983


Judgment, Supreme Court, New York County (Leonforte, J.), entered July 27, 1982, dismissing the complaint, unanimously reversed, on the law, without costs. Order, Supreme Court, New York County (Leonforte, J.), entered June 3, 1982, denying plaintiff's motion for summary judgment and granting defendants' cross motion for summary judgment, unanimously reversed, on the law, motion granted, action in chief severed, and defendants' cross motion denied, with costs. The plaintiff owns the building located at 1036 Park Avenue. The defendants own the shares for apartment 2-E in that building. Article II, paragraph Fourth of the proprietary lease subjects the lessees to the "house rules". Paragraph "Eighteen" of the "house rules" provides that: "No dogs shall be kept or harbored in the building, unless the same in each instance be expressly permitted in writing by the Lessor". The plaintiff has brought this action for a permanent injunction to prohibit defendants from keeping a dog. The defendants admit that they have maintained a dog without permission but they state that other residents in the building also maintain dogs. In the past, we have found no merit to a defense based upon the selective enforcement of a provision prohibiting dogs. Likewise, we have rejected similar defenses based upon both waiver and estoppel ( Mutual Redevelopment Houses v. Balducci, 37 A.D.2d 943; 930 Fifth Corp. v. King, 40 A.D.2d 140, app dsmd 31 N.Y.2d 1046). In short, Special Term should have granted plaintiff's motion for summary judgment permanently enjoining defendants from keeping their dog ( Hillman Housing Corp. v. Krupnik, 40 A.D.2d 788). In accordance therewith, the action in chief should have been severed from defendants' counterclaims.

Concur — Murphy, P.J., Ross, Bloom, Milonas and Alexander, JJ.


Summaries of

1036 Park Corporation v. Rubin

Appellate Division of the Supreme Court of New York, First Department
Feb 1, 1983
92 A.D.2d 452 (N.Y. App. Div. 1983)
Case details for

1036 Park Corporation v. Rubin

Case Details

Full title:1036 PARK CORPORATION, Appellant, v. MORTON RUBIN et al., Respondents

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 1, 1983

Citations

92 A.D.2d 452 (N.Y. App. Div. 1983)

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