403 W. 43 Street Rest. Inc. v. Ninth Avenue Realty, LLC

Appellate Division of the Supreme Court of New York

403 W. 43 Street Rest. Inc. v. Ninth Avenue Realty, LLC

36 A.D.3d 464, 827 N.Y.S.2d 655

Appellate Division of the Supreme Court of the State of New York·Decided January 11, 2007·Published·Cited by 1 cases

Opinion

Order, Supreme Court, New York County (Paviola A. Soto, J.), entered July 13, 2006, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for injunctive and declaratory relief, and granted defendant partial summary judgment dismissing four causes of action, unanimously affirmed, with costs.

Viewing article 65 of the lease in its entirety “so as to give effect to the intention of the parties as expressed in the unequivocal language employed” (Morlee Sales Corp. v Manufacturers Trust Co., 9 NY2d 16, 19 [1961]), defendant landlord possessed the absolute right to terminate the lease and plaintiff tenant possessed only the right to challenge the bona tides of defendant’s intent in a separate action for damages, not in a proceeding with respect to possession. As plaintiff retained no ability to cure, the court properly denied its application for a Yellowstone injunction (see Lexington Ave. & 42nd St. Corp. v 380 Lexchamp Operating, 205 AD2d 421, 423 [1994]). Nor did plaintiff meet the requirements for a preliminary injunction pursuant to CPLR 6301 (see Aetna Ins. Co. v Capasso, 75 NY2d 860 [1990]).

Because the court properly determined that the tenant had waived its right to challenge the bona fides of the landlord in a proceeding relating to possession, and in any event, the landlord demonstrated a bona fide intent to remodel the premises, the court properly granted summary judgment dismissing the first, second, third and fifth causes of action.

We have considered plaintiffs remaining arguments and find [465]*465them without merit. Concur — Tom, J.E, Mazzarelli, Andrias, Marlow and Gonzalez, JJ.

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Order, Supreme Court, New York County (Paviola A. Soto, J.), entered July 13, 2006, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for injunctive and declaratory relief, and granted defendant partial summary judgment dismissing four causes of action, unanimously affirmed, with costs.

Viewing article 65 of the lease in its entirety “so as to give effect to the intention of the parties as expressed in the unequivocal language employed” (Morlee Sales Corp. v Manufacturers Trust Co., 9 NY2d 16, 19 [1961]), defendant landlord possessed the absolute right to terminate the lease and plaintiff tenant possessed only the right to challenge the bona tides of defendant’s intent in a separate action for damages, not in a proceeding with respect to possession. As plaintiff retained no ability to cure, the court properly denied its application for a Yellowstone injunction (see Lexington Ave. & 42nd St. Corp. v 380 Lexchamp Operating, 205 AD2d 421, 423 [1994]). Nor did plaintiff meet the requirements for a preliminary injunction pursuant to CPLR 6301 (see Aetna Ins. Co. v Capasso, 75 NY2d 860 [1990]).

Because the court properly determined that the tenant had waived its right to challenge the bona fides of the landlord in a proceeding relating to possession, and in any event, the landlord demonstrated a bona fide intent to remodel the premises, the court properly granted summary judgment dismissing the first, second, third and fifth causes of action.

We have considered plaintiffs remaining arguments and find [465]*465them without merit. Concur — Tom, J.E, Mazzarelli, Andrias, Marlow and Gonzalez, JJ.

403 W. 43 Street Rest. Inc. v. Ninth Avenue Realty, LLC, 36 A.D.3d 464, 827 N.Y.S.2d 655 (N.Y. Ct. App. 2007).

Pincite

36 A.D.3d 464 (403 W. 43 Street Rest. Inc. v. Ninth Avenue Realty, LLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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