107-48 Queens Blvd. Holding Corp. v. ABC Brokerage Inc.

238 A.D.2d 557, 656 N.Y.S.2d 691

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 1997
• Status: Published

Opinion

—In related actions, inter alia, to recover damages for breach of a lease which were previously joined for trial, Maredin Rest. Corp. appeals from an order of the Supreme Court, Queens County (Price, J.), dated September 20, 1996, which denied its motion, inter alia, to remove a summary nonpayment proceeding entitled 107-48 Queens Blvd. Holding Corp. v Maredin Rest. Corp., pending in Civil Court, Queens County, under Index No. 65405/96, to the Supreme Court, Queens County, and to consolidate that proceeding with the instant actions.

Ordered that the order is affirmed, with costs.

In the lease between the appellant and the respondent, the appellant contractually agreed not to interpose counterclaims in the summary proceeding. This provision of the lease may not be circumvented by consolidating the summary proceeding with the Supreme Court actions (see, Titleserv, Inc. v Zenobio, 210 AD2d 310; Hanlon & White Assocs. v Schultz, 121 Misc 2d 13).

The parties’ remaining contentions are without merit. Rosenblatt, J. P., Miller, Thompson and Friedmann, JJ., concur.