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EARNEST COX ET AL. v. CLIFFORD ROGERS ET AL. (06/19/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


June 19, 1969

EARNEST COX ET AL., RESPONDENTS,
v.
CLIFFORD ROGERS ET AL., APPELLANTS

Appeal from certain parts of order of Onondaga Special Term granting preliminary injunction and denying motion to dismiss complaint.

Del Vecchio, J. P., Marsh, Gabrielli, Bastow and Henry, JJ.

Memorandum: Issues are presented in the moving papers not only as to whether the defendants landlords are responsible for code violations on the premises and for a failure to correct them but also as to plaintiffs' own direct responsibility as tenants for their creation and maintenance. As stated in Town of Southeast v. Gonnella (26 A.D.2d 550) "In the absence of a clear right to the relief demanded, injunctive relief should not be granted until the issues have been fully explored and the entire matter resolved after plenary trial." In the circumstances presented by the moving papers injunctive relief should not be granted without a resolution of the factual issues on the trial.

Disposition

Order insofar as appealed from unanimously modified in accordance with the memorandum herein, and as so modified affirmed, without costs.

19690619

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