560 Third Associates v. Whitehall Tenants Corp.

Appellate Division of the Supreme Court of New York

560 Third Associates v. Whitehall Tenants Corp.

286 A.D.2d 599, 730 N.Y.S.2d 219, 2001 N.Y. App. Div. LEXIS 8390

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 13, 2001

StatusPublished

This text of 286 A.D.2d 599 (560 Third Associates v. Whitehall Tenants Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

560 Third Associates v. Whitehall Tenants Corp., 286 A.D.2d 599, 730 N.Y.S.2d 219, 2001 N.Y. App. Div. LEXIS 8390 (N.Y. Ct. App. 2001).

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Opinion

—Order, Supreme Court, Bronx County (Howard Silver, J.), entered April 19, 1999, which, insofar as appealed from, denied plaintiffs motion for partial summary judgment on its claim for declaratory relief, and denied defendant’s cross motion for dismissal of Action No. 1 and summary judgment in Action No. 2, unanimously modified, on the law, to the extent of granting plaintiffs motion for partial summary judgment declaring that the master lease remains in effect, and the matter remanded to Supreme Court for further proceedings, and otherwise affirmed, without costs.

The central question presented by this appeal is whether all 10,856 shares of stock were issued to plaintiff, which, by the terms of the parties’ agreement, would terminate the master lease. Contrary to the conclusion reached by Supreme Court, we find no question of fact concerning this issue that would preclude a grant of summary judgment in plaintiffs favor.

While it is true that plaintiff initially demanded that defendant issue all 10,865 shares (a demand that was originally resisted), during the litigation of the within action plaintiff modified its position to demand only the 8,280 shares allocable to 16 out of the 22 units and we find nothing in the record to support a contrary conclusion. Accordingly, the master lease was not terminated.

We conclude, however, that Supreme Court correctly determined that Action No. 1 was not abandoned. Among other things, the relief sought in that action included a claim for damages resulting from defendant’s wrongful refusal to issue the requested shares in the first instance.

[600]*600In view of the foregoing, we do not reach the parties’ remaining contentions, some of which are raised for the first time on appeal (see, Reliance Natl. Ins. Co. v Sapiens Intl. Corp., 243 AD2d 406). Concur — Rosenberger, J. P., Williams, Tom, Wallach and Friedman, JJ.

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—Order, Supreme Court, Bronx County (Howard Silver, J.), entered April 19, 1999, which, insofar as appealed from, denied plaintiffs motion for partial summary judgment on its claim for declaratory relief, and denied defendant’s cross motion for dismissal of Action No. 1 and summary judgment in Action No. 2, unanimously modified, on the law, to the extent of granting plaintiffs motion for partial summary judgment declaring that the master lease remains in effect, and the matter remanded to Supreme Court for further proceedings, and otherwise affirmed, without costs.

The central question presented by this appeal is whether all 10,856 shares of stock were issued to plaintiff, which, by the terms of the parties’ agreement, would terminate the master lease. Contrary to the conclusion reached by Supreme Court, we find no question of fact concerning this issue that would preclude a grant of summary judgment in plaintiffs favor.

While it is true that plaintiff initially demanded that defendant issue all 10,865 shares (a demand that was originally resisted), during the litigation of the within action plaintiff modified its position to demand only the 8,280 shares allocable to 16 out of the 22 units and we find nothing in the record to support a contrary conclusion. Accordingly, the master lease was not terminated.

We conclude, however, that Supreme Court correctly determined that Action No. 1 was not abandoned. Among other things, the relief sought in that action included a claim for damages resulting from defendant’s wrongful refusal to issue the requested shares in the first instance.

[600]*600In view of the foregoing, we do not reach the parties’ remaining contentions, some of which are raised for the first time on appeal (see, Reliance Natl. Ins. Co. v Sapiens Intl. Corp., 243 AD2d 406). Concur — Rosenberger, J. P., Williams, Tom, Wallach and Friedman, JJ.

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286 A.D.2d 599, 730 N.Y.S.2d 219, 2001 N.Y. App. Div. LEXIS 8390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/560-third-associates-v-whitehall-tenants-corp-nyappdiv-2001.

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