Opinion
May 11, 1987
Appeal from the Supreme Court, Nassau County (Balletta, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court granted the plaintiff's application to remove a summary proceeding pending in the District Court of the County of Nassau, Third District, to be tried jointly with this action pending in the Supreme Court, Nassau County. However, the court conditioned the granting of the application on the plaintiff paying the current rent and accrued rent which had been withheld. This was an appropriate exercise of discretion. We note that the order stated that "these payments shall be without prejudice to whatever rights the plaintiff may have upon trial to abatement, setoffs, credits or the like". Contrary to the plaintiff's assertion, the order of the Supreme Court directing the payment of current and accrued rent did not determine the issues of actual or constructive eviction, which remain to be decided. Bracken, J.P., Brown, Rubin and Spatt, JJ., concur.