I am in general agreement with Justice Fein’s able analysis of the troublesome issues presented on this appeal, except with regard to his conclusion that the Ansonia Residents’ Association (Association) should be enjoined “from continued solicitation, collection and withholding of rental payments”. I do not understand the legal basis for this injunction, the practical consequences of which seem to me certain to be harmful both to the landlord and to the tenants.
The injunction is supported on the ground that the landlord has demonstrated that it will otherwise suffer irreparable damage. If this contention is correct, which I doubt, the injunction does not meet the problem, for it does not insure that the landlord will in fact receive any additional rent during the course of this litigation. The injunction simply eliminates a very desirable device for insuring that the rent money will in fact be available if and when the landlord ultimately recovers a judgment.
If the tenants have a legal right under section 235-b of the Real Property Law to withhold rents on the claim that there has been a breach of the warranty of habitability, which Justice Fein’s opinion clearly and properly recognizes, I cannot agree that they may not make arrangements under which a responsible official of the Association periodically collects the rents and places them in an escrow account. Such arrangements are obviously beneficial both to landlords and tenants. The landlords are assured that they will be able to recover ultimately on any judgment awarded in their favor. Individual tenants are protected against the *223possibility that they will not have the funds available to pay such a judgment.
I appreciate that the injunction reflects a response to what is perceived to be a particular problem presented by peculiar aspects of this lawsuit and is not intended as a general disapproval of an obviously desirable procedure. However, the opinion as written may be misinterpreted as representing such a disapproval and, if so, the consequences are sure to be unfortunate.
One other aspect of the case merits comment. Although I do not dissent from Justice Fein’s conclusion that under the circumstances of this case the Supreme Court should have retained jurisdiction to try the issues that were presented, I find the question much closer than is suggested in his opinion.
Section 110 of the New York City Civil Court Act, establishing a Housing Part in the Civil Court and vesting that part with broad powers, clearly contemplates that issues of the kind presented here should be litigated in the first instance in that specialized part. It should be noted that the Housing Part is explicitly empowered in subdivision [b] of section 110 to “consolidate all actions and proceedings pending in such part as to any building.”
Nor do I see any difficulty in the exercise of jurisdiction by the Housing Part in the circumstance that the greater part of the withheld rental moneys are deposited in an escrow account maintained by the Association. It is surely very improbable that the Association would withhold such moneys in the event of a judgment for the landlord for all or part of that which is maintained in the Association account.
It may well be that the procedural history of this lawsuit made it preferable for the Supreme Court to retain jurisdiction when the matter came on for trial. I do not think this determination, however, should be interpreted as denying to the Supreme Court, in appropriate cases,, the discretion to determine that the issues are more appropriately litigated in the very court that wias explicitly set up by statute to deal with precisely such questions.
*224Kupferman, J. P. and Birns, J., concur in part and dissent in part with Fein, J., in an opinion; Sandler and Carro, JJ., concur in part and dissent in part in a separate opinion by Sandler, J.
Order, Supreme Court, Special Term, New York County, entered on June 13,1980, modified, on the law and the facts, by striking so much thereof as directs the tenants’ association to turn the rents already collected over to the landlord, and as so modified, the order is reinstated and affirmed, without costs and without disbursements.
Order and judgment (one paper), Supreme Court, Trial Term, New York County, entered on August 4, 1980, reversed, on the law, and on the facts, without costs and without disbursements, the motion to dismiss the complaint denied, the order vacating the temporary injunction modified as indicated in the opinion of this court filed herein, and the action remanded for a continuation of the trial on a basis not inconsistent with this court’s opinion.