SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
June 13, 1968
IN THE MATTER OF NEIMALL REALTY CORP. ET AL., APPELLANTS,
CHARLES G. MOERDLER, AS COMMISSIONER OF THE DEPARTMENT OF BUILDINGS & HOUSING OF THE CITY OF NEW YORK, RESPONDENT
Concur -- Botein, P. J., Stevens, Capozzoli, Rabin and McNally, JJ.
Upon the record presently before us, the respondent's position must be sustained. It appears, however, that since the determination at Special Term, the pending criminal proceeding grounded on the violation was dismissed on the merits. Respondent's brief suggests the Department is not thereby precluded from proceeding under section 306. If respondent fails to proceed under section 306, then petitioners may possibly be entitled to relief since the violation is a cloud on the title to the affected premises. The appeal from the denial of an injunction against criminal prosecution is moot.
Order entered September 27, 1967, denying application to cancel violation against petitioners' premises and for other relief, unanimously affirmed, without costs or disbursements, and without prejudice to a proceeding for relief in the event respondent or the appropriate department does not, within 30 days after the entry of the order herein, institute a proceeding pursuant to section 306 of the Multiple Dwelling Law.
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