Lincoln Plaza Associates, Appellant, v. Selber Bros., Inc., et al., Respondents

Lincoln Plaza Associates, Appellant, v Selber Bros., Inc., et al., Respondents. [MAJORITY] Appeal from the order of Supreme Court, New York County (Andrew R. Tyler, J.), entered March 23, 1987, which, granted defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction and denied, as moot, plaintiff’s cross motion to compel discovery, dismissed, without costs and without disbursements. Plaintiff, the landlord of a rent-stabilized apartment, brought an action seeking a judgment declaring that defendant, the tenant of that apartment, does not occupy it as a primary residence. Inasmuch as Supreme Court has subject matter jurisdiction (Central Park S. Assocs. v Hackel, 104 AD2d 344 [1st Dept 1984]), and questions of fact are presented which preclude summary judgment, defendant’s motion should have been denied. This appeal, however, has been abated by the order of the IAS court entered December 4, 1987, which granted plaintiff’s motion for reargument, and upon reargument, denied defendant’s motion. Plaintiff’s motion to compel discovery may be renewed before the IAS court, which did not reach it in the course of deciding the motion for summary judgment and dismissal. Concur — Kupferman, J. P., Asch, Milonas, Rosenberger and Ellerin, JJ.