Somekh v. Ipswich House, Inc. , 81 A.D.2d 662 ( 1981 )

— In an action, inter alia, to declare that the plaintiff tenant’s maintenance of a dog in her apartment is not a violation of her lease and to enjoin the defendant landlord from commencing any proceeding to terminate plaintiff’s lease, plaintiff appeals from an order of the Supreme Court, Nassau County, dated November 20, 1980, which denied her motion for a preliminary injunction and granted defendant’s cross motion for summary judgment dismissing the complaint. Order reversed, without costs or disbursements, defendant’s cross motion is denied, and plaintiff’s motion is granted on condition (1) that she post an undertaking in the amount of $500 pursuant to CPLR 6312 and (2) that she continue to .pay all maintenance and other charges due and owing under the lease. Plaintiff shall post the undertaking within 10 days after service upon her of a copy of the order to be made hereon, with notice of entry. We direct that an immediate trial be held. Defendant’s cross motion for summary judgment should have been denied since there are issues of fact presented which cannot be determined on conflicting affidavits. Special Term should have granted a preliminary injunction in order to preserve plaintiff’s right to cure a default under the lease in the event of an adverse decision in the declaratory judgment action (cf. First Nat. Stores v Yellowstone Shopping Center, 21 NY2d 630; Wuertz v Cowne, 65 AD2d 528). Lazer, J.P., Cohalan, Margett and O’Connor, JJ., concur.