The essence of defendants' objection to the grant of summary judgment is the declaration that the leased premises include a roof terrace, the boundaries of which are delineated by a wooden roof deck. Defendants contend that summary judgment was improper in the absence of any documentary evidence that the terrace is included in the leased space. However, the record contains plaintiff's affidavit, which states that he has been a tenant of the penthouse apartment since 1974 and that it "consists of a studio apartment with a separate kitchen and a large terrace, all situated on the roof of 49 Park Avenue." It continues, "The boundary of the terrace was always defined as the area of the roof covered by a wooden deck, which was in existence prior to my moving in."
Contrary to defendant's contention, plaintiff's affidavit constitutes evidence of the facts recited ( Tungsupong v BronxLebanon Hosp. Ctr., 213 AD2d 236, 237 [the statement of a witness constitutes competent evidence], citing Harris v City of New York, 147 AD2d 186, 189). The absence of a building permit is not conclusive of the lack of permission to erect the wooden deck. To the contrary, the existence of the structure for so long a period of time gives rise to a presumption that prior owners of the building acquiesced in its use by the tenant as part of the leasehold. Defendants have come forward with no proof to contravene plaintiffs sworn affidavit, and Supreme Court was warranted in reaching the logical conclusion that, upon the record before it, the roof deck constitutes part of the leased premises. We note, however, that the court avoided passing on the legality of the structure, which remains to be resolved.
As for plaintiffs appeal, he has failed to demonstrate that Supreme Court's direction to pay accrued rent into court is an abuse of discretion. Having asked the court to declare "the rights and other legal relations of the parties" (CPLR 3001), plaintiff cannot complain that the court exercised its initiative in directing that rent due to defendants be paid into court as special circumstances make it desirable that it should not be paid to them (CPLR 2701). Moreover, such a direction is within the inherent plenary power of Supreme Court "`to fashion any remedy necessary for the proper administration of justice'" ( Cane v Herman, 209 AD2d 368, quoting People ex rel. Doe v Beaudoin, 102 AD2d 359, 363; Wagner v Kurz, 92 AD2d 775).
Equally devoid of merit is plaintiffs contention that this matter should not have been transferred because Civil Court lacks the power to adjudicate the controversy. Plaintiffs brief fails to identify any item of requested relief that Civil Court is without power to grant. Contrary to the intimation contained in his reply brief, Civil Court is vested with broad authority to enforce housing standards, including issuance of "an injunction, restraining orders or other orders" (CCA 203 [o]). It is certainly empowered to decide the remaining issue of whether the roof deck located on the premises is in compliance with governing law and regulations. Furthermore, we discern no issue that would be incapable of resolution in the Housing Part of Civil Court, which we have consistently stated to be the preferred forum for hearing disputes of this nature ( see, Cox v J. D. Realty Assocs., 217 AD2d 179, 181-183).
As to the order citing plaintiff and his counsel for contempt and imposing sanctions, even granting that payment of the accrued rent into an escrow account instead of into court does not substantially comply with the court's direction, it has not been shown how this conduct impaired the rights of defendants ( Richards v Estate of Kaskel, 169 AD2d 111, 121-122, lv denied in part 78 NY2d 1042). Furthermore, the asserted contemnors have offered a reasonable excuse for variance from the court's order, stating that tender of the deposit was refused by the Clerk of Civil Court because the file had not yet been received. The "extraordinary" power to impose wholly punitive sanctions for civil contempt "should be exercised only very cautiously and where the necessity is clear" ( N. A. Dev. Co. v Jones, 99 AD2d 238, 242).