#### Argyle Associates, Inc., Plaintiff, *v.*Irving Pinsker, Defendant.

Supreme Court, Special Term, Nassau County,

January 27, 1959.

*Theodore Krieger*for plaintiff.

*Sprague & Stern*for defendant.

D. Ormonde Ritchie, J.

In an action for declaratory judgment plaintiff seeks an injunction staying defendant from prosecuting summary proceedings in the Nassau County District Court pending a determination by this court of the action for declaratory judgment. The defendant in a cross motion made pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice, seeks an order dismissing the complaint on the ground that it does not state facts sufficient to constitute a cause of action for declaratory judgment.

The plaintiff is a tenant in premises owned by defendant by virtue of a lease executed between the parties dated December 10, 1954, for a period of five years with an option granted to tenant to renew for an additional 10-year period. On January 26,1958, the premises were damaged as a result of fire. Reconstruction of the premises was commenced on July 14, 1958, and completed on September 17, 1958, when use thereof was resumed by the plaintiff tenant. The lease provided for an abatement of rent for the period during which the premises were in the course of repair provided the landlord was collecting proceeds of rent insurance. Rent was paid by the insurance carrier for the period commencing with the date of the fire to July 1, 1958. Rent was not paid from July 1, 1958 to *159September 17, 1958, the date of completion of reconstruction and resumption of use by the plaintiff. Demand for payment of rent for that period was made by the landlord of the plaintiff, and payment was refused. Under provisions of the lease permitting termination in the event of nonpayment of rent, notice of termination of the lease predicated upon nonpayment of rent for the period from July 1, 1958 to September 17, 1958 was mailed to the plaintiff and subsequently thereto summary proceedings were instituted. The first of those proceedings were dismissed upon a consent to a discontinuance thereof by the landlord. The second proceeding was dismissed by the District Court upon a defect in the notice of termination of the lease. In contemplation of the institution of a third proceeding the plaintiff tenant herein commenced the instant action for declaratory judgment. In such action plaintiff seeks the following relief: (1) That the judgment declare whether the plaintiff is indebted to the defendant for rent from the period commencing July 1, 1958 up to September 17, 1958, and (2) Whether there has ever been a waiver, express or implied, of the aforesaid rent.

It is the opinion of this court that the matters on which plaintiff seeks a declaration are matters that are properly to be urged in defense of the summary proceedings and to be adjudicated by the District Court in that proceeding. For this court to entertain jurisdiction of the instant action for declaratory judgment would be to usurp the jurisdiction of the District Court by passing upon the merits of a defense properly interposed in a proceeding pending in that court. The motion to dismiss the complaint is granted. It follows that the application for an injunction *pendente lite*is denied.