Lawrence Friedland, et al., Plaintiffs-Appellants, v. BROCK

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Supreme Court, Appellate Division, First Department, New York.

MADISON III ASSOCIATES LIMITED PARTNERSHIP, Plaintiff, Lawrence Friedland, et al., Plaintiffs-Appellants, v. Trel BROCK, Defendant-Respondent.

Madison III Associates Limited Partnership, Plaintiff, Lawrence Friedland, et al., Plaintiffs-Appellants, v. Clint Brownfield, Defendant-Respondent.

Decided: February 18, 1999

SULLIVAN, J.P., ELLERIN, LERNER and RUBIN, JJ. Jeffrey I. Aaron, for plaintiffs-appellants. David Ng, for defendants-respondents.

Orders, Supreme Court, New York County (Lewis Friedman J.), entered December 17 and 20, 1996, as modified by orders entered January 15, 1997, which, in separate actions resulting in judgments of the same court (Walter Schackman, J.), entered July 25, 1996, in favor of plaintiffs landlords and against defendants tenants for unpaid rent and possession of the subject apartments, resettled such judgments by vacating the portions thereof as awarded possession, unanimously affirmed, with costs.

 Resettlement was properly granted.   Such disposition corrected an inconsistency between the judgments, which granted plaintiffs unconditional possession, and the decision, which contained no reference to plaintiffs' claim for possession or suggestion that such relief would be warranted were defendants to satisfy their rent obligations.   Indeed, the trial transcript reflects that it was the Trial Justice's view that possessory relief would be warranted only if defendants failed to pay the rent arrears ascertained at the trial.   Where there is an inconsistency between a judgment and the decision upon which it is based, the decision controls (Di Prospero v. Ford Motor Co., 105 A.D.2d 479, 480, 480 N.Y.S.2d 784).

 We further note that this Court has discouraged resort to Supreme Court where complete relief can be accorded by the Housing Part of the Civil Court (Post v. 120 E. End Ave. Corp., 62 N.Y.2d 19, 28, 475 N.Y.S.2d 821, 464 N.E.2d 125;  Cox v. J.D. Realty Assoc., 217 A.D.2d 179, 637 N.Y.S.2d 27).

MEMORANDUM DECISION.