28 Misc. 2d 938 | City of New York Municipal Court | 1961
The petitioner herein, the landlord of the premises located at 225 Broadway, Borough of Manhattan, seeks an order for summary judgment pursuant to rule 113 of the Rules of Civil Practice, and prays for (a) final order of possession and (b) money judgment for rent arrears from June, 1960.
The tenant, a statutory tenant, is an attorney occupying office space for the practice of his profession in the aforesaid building. The answer interposed by him contains a general denial and, inter alia, a counterclaim for $1,380 based on an alleged unreasonable diminution of services, namely, a refusal to paint the premises under an expired lease.
Rule 113 of the Rules of Civil Practice, by its own terms is limited to actions only. Section 4 of the Civil Practice Act defines “ action ” thusly: “ Actions are of two kinds, civil and criminal. The word ‘ action ’, when applied to judicial proceedings, signifies an ordinary prosecution in a court of justice by a party against another party for the enforcement or protection of a right, the redress or prevention of a wrong or the punishment of a public offense.” All other civil prosecutions are defined as special proceedings in section 5 of the Civil Practice Act.
Thus, at the outset, the court is called upon to determine whether rule 113 of the Rules of Civil Practice has application to what is commonly called a summary proceeding.
It is true that the approach in allowing practice applications and motions in summary proceedings is different in the First and Second Departments. (Hecht v. Maness, 23 Misc 2d 889
A careful examination of the moving and opposing papers indicates a triable issue, and thus the motion is denied.