Opinion
March 3, 1998
Appeal from the Supreme Court, New York County (Eileen Bransten, J.).
We agree with the motion court that issues of fact exist as to what documents defendants told plaintiff were necessary to the success of plaintiff's hardship application under Multiple Dwelling Law § 285 (2), and whether those documents were timely provided by plaintiff to defendant ( see, Metrokane Imports v. Kane, Dalsimer, Kane, Sullivan Kurucz, 150 A.D.2d 153; Caiati v. Kimel Funding Corp., 154 A.D.2d 639). We also agree that an issue exists as to whether the hardship application would have been granted assuming it had been properly handled. However, the action, which had been severed from another action brought by plaintiff against tenants from whom it was unable to collect rent without a hardship order, should not have been restored to the calendar, notwithstanding that the severance was made after the rent action had reached trial. With respect to the severed malpractice issues, pretrial proceedings had not been concluded, and no note of issue had been filed. We modify accordingly.
Concur — Sullivan, J. P., Rosenberger, Ellerin and Tom, JJ.