Opinion
July 6, 1995
Appeal from the Supreme Court, New York County (Alice Schlesinger, J.).
The tenant's claims for damages as a result of the landlord's breach of the lease in excess of the unpaid rent claimed as the basis for the landlord's election to terminate the lease, may provide an equitable defense to the holdover proceeding ( see, Linden Blvd. v. Elota Realty Co., 196 A.D.2d 808, 811, lv denied 82 N.Y.2d 658). There are also common issues of fact as to landlord's alleged unconscionable conduct, which may bar landlord's utilization of termination of lease provisions enabling it to convert a nonpayment case to a holdover proceeding ( see, Grand Liberte Coop. v. Bilhaud, 126 Misc.2d 961). Thus, the Civil Court action was properly removed and consolidated with the Supreme Court action in light of the common issues of law and fact ( see, Phoenix Garden Rest. v. Chu, 202 A.D.2d 180; DeCastro v. Bhokari, 201 A.D.2d 382; Amtorg Trading Corp. v. Broadway 56th St. Assocs., 191 A.D.2d 212).
Concur — Sullivan, J.P., Rosenberger, Ross, Asch and Tom, JJ.