Opinion
November 14, 1972
Order, Supreme Court, New York County, entered on May 10, 1972, denying plaintiff's motion for summary judgment, reversed, on the law, without costs and without disbursements, and the motion is granted in favor of plaintiff. Although there is a superficial discrepancy between the complaint and the submission, the latter is complete, and we are enjoined to dispose of matters as the parties submit them, without the further circumlocution of unnecessary pleadings. (See CPLR 104, 3206; Albemarle Theatre v. Bayberry Realty Corp., 27 A.D.2d 172; Kelly v. Bank of Buffalo, 32 A.D.2d 875; H.M. Brown, Inc. v. Price, 38 A.D.2d 680; Kovarsky v. Housing Development Administration of City of N.Y., 31 N.Y.2d 184.) Particularly is this so on this submission, because one result is inevitable: a granting of the motion, because this court, and the Court of Appeals, have made it manifest that a landlord can legally enforce a lease providing for the prohibition of dogs, as a matter of law. And this defendant has maintained a dog on the premises for over six years, or long past the time he signed a lease which forbade such harboring; and injunctive relief is available. The landlord does not seek to oust the defendant. Only the canine. To accomplish this no additional amendment of the pleadings is necessary. ( East Riv. Housing Corp. v. Matonis, 34 A.D.2d 937, affd. 27 N.Y.2d 931; Riverbay Corp. v. Klinghoffer, 34 A.D.2d 630.) Further, in our view the claim of ambiguity and disparity is insupportable. The defendant signed one lease, to wit, Exhibit C. And that said: "FOURTEENTH. — No dogs or other animals shall be kept or harbored in the demised premises, unless the same in each instance be expressly permitted in writing by the Lessor." And the reply affidavit makes it clear, and it is not denied, the occupancy agreement and the lease are one and the same.
Concur — Stevens, P.J., McGivern, Markewich and Tilzer, JJ.; Kupferman, J., dissents and votes to affirm.