Opinion
October 13, 1987
Appeal from the Supreme Court, Kings County (Vaccaro, J.).
Ordered that the order is modified, on the law and the facts, by deleting the provision thereof which granted the plaintiffs' motion for a stay of the Civil Court holdover proceeding pending between the parties, and substituting therefor a provision denying the motion; as so modified, the order is affirmed, with costs to the defendant.
In view of the triable issues of fact concerning the plaintiffs' entitlement to remain in possession of the demised premises under an allegedly valid lease, the court acted properly in denying the defendant's cross motion for summary judgment dismissing the complaint.
However, we find that the court erred in staying the holdover proceeding instituted by the defendant against the plaintiffs in the Civil Court, Kings County, pending a resolution of the instant declaratory judgment action. It is well settled that a court of equity will not stay a summary proceeding between the parties pending the outcome of a suit in equity unless the tenant has some equity or defense which is not available in the summary proceeding (see, Parksouth Dental Group v. East Riv. Realty, 122 A.D.2d 708; Kanter v. East 62nd St. Assocs., 111 A.D.2d 26; Cohen v Goldfein, 100 A.D.2d 795; Lun Far Co. v. Aylesbury Assocs., 40 A.D.2d 794; see also, 3 Rasch, New York Landlord Tenant — Summary Proceedings § 1412, at 238 [2d ed]). In the case at bar, it is clear that the plaintiffs may obtain full redress of their rights under the alleged lease agreement in the summary proceeding pending in the Civil Court. Accordingly, the plaintiffs' motion for a stay thereof should have been denied. Mollen, P.J., Bracken, Rubin, Kooper and Spatt, JJ., concur.