I would affirm the denial of the motion to dismiss the complaint for lack of jurisdiction and reverse only so much of the order as allowed an increase of the ad damnum clause. That the courts have jurisdiction has been repeatedly maintained. (Gilligan v. Tishman, 283 App. Div. 157, 164, affd. 306 N. Y. 974; Barbee v. 2639 Corp., 284 App. Div. 298, 301; Cooper v. Castagnello, 64 Misc 2d 448.) The utter impotency of the administrative relief is patent from the lapse of time since the fire, due to the defendant’s negligence, June 11,1969, and the order of the City Bent and Behabilitation Administration, July 2, 1969. This latter order read: “ Under the Begulations the above named tenant is entitled to be rein*6stated into possession of the apartment after the fire damage is repaired”. Neither event having occurred, the plaintiff desperately, but properly, turned to the courts. And the court, on the complaint herein, can fashion suitable relief. (I.H.P. Corp. v. 210 Central Park South Corp., 16 A D 2d 461.)
I am also distressed by the imposition of costs on this hard-pressed tenant, who served his complaint on October 14, 1969 and placed the case on the calendar by note of issue dated August 10, 1970. 'The landlord did not move to dismiss for jurisdiction-failure until the eve of trial, April 8, 1971, and only after requesting many trial adjournments and after extensively examining the plaintiff. By my computation, this action has been on the Trial Calendar 11 times, the plaintiff has been examined on 7 occasions, the matter has engaged the attention of no less than 5 Judges, before this appeal, and was the subject of 7 motions prior to the instant motion to dismiss “ on the ground that the Court does not have jurisdiction of the subject matter.” Thus, this motion comes with ill-grace and from one who has ignored the Rent Administrator and ill-used our courts. I would deny defendant’s motion to dismiss, with costs and disbursements.
Murphy and Tilzer, JJ., concur with Eager, J.; McGivern, J. P., dissents in an opinion in which Kupeerman, J., concurs.
Order, Supreme Court, New York County, entered on May 7, 1971, reversed, on the law, defendant-appellant’s motion granted, the amended complaint dismissed and the action severed as to defendant-appellant, without prejudice, however, to an application by plaintiff to Special Term for leave to serve a further amended complaint pleading such cause or causes of action in tort as he may have to recover for property damage and without prejudice to such administrative remedies as may be available to plaintiff. Appellant shall recover of respondent $50 costs and disbursements of this appeal.
Appeal from order, Supreme 'Court, New York County, entered on December 14, 1970, dismissed as academic, without costs and without disbursements.