Didco Urban Renewal Co. v. Mann Management, Inc.

Appellate Division of the Supreme Court of New York

Didco Urban Renewal Co. v. Mann Management, Inc.

224 A.D.2d 195, 637 N.Y.S.2d 131, 1996 N.Y. App. Div. LEXIS 811

Appellate Division of the Supreme Court of the State of New York·Decided February 1, 1996·Published·Cited by 2 cases

Opinion

—Order, Supreme Court, New York County (Paula Omansky, J.), entered May 3, 1995, which, inter alia, denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

We agree with the IAS Court that dismissal of the complaint would be premature prior to the completion of discovery and precluded by triable material issues of fact raised by the conflicting affidavits as to whether plaintiff had either waived or was estopped from termination of the parties’ management agreement on the grounds that defendant’s comptroller had accepted an improper "kickback” payment in violation of Article XII (a) (iii) of the agreement (Unionport Shoes v Parkchester S. Condominium, 205 AD2d 385, 387; Boston Concessions Group v Criterion Ctr. Corp., 200 AD2d 543, 545; BWA Corp. v Alltrans Express, 112 AD2d 850, 853).

The IAS Court also properly refused to dismiss the action on the ground that plaintiff lacked standing to maintain the action since plaintiff’s opposition papers, including the New Jersey Certificate of Limited Partnership, indicate that any reference in the agreement to plaintiff as "Didco Urban Renewal Co., Ltd.”, rather than as "Didco Urban Renewal Company”, was merely an inadvertent error.

We have considered defendant’s remaining arguments and find them to be without merit. Concur — Sullivan, J. P., Wallach, Rubin and Tom, JJ.

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—Order, Supreme Court, New York County (Paula Omansky, J.), entered May 3, 1995, which, inter alia, denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

We agree with the IAS Court that dismissal of the complaint would be premature prior to the completion of discovery and precluded by triable material issues of fact raised by the conflicting affidavits as to whether plaintiff had either waived or was estopped from termination of the parties’ management agreement on the grounds that defendant’s comptroller had accepted an improper "kickback” payment in violation of Article XII (a) (iii) of the agreement (Unionport Shoes v Parkchester S. Condominium, 205 AD2d 385, 387; Boston Concessions Group v Criterion Ctr. Corp., 200 AD2d 543, 545; BWA Corp. v Alltrans Express, 112 AD2d 850, 853).

The IAS Court also properly refused to dismiss the action on the ground that plaintiff lacked standing to maintain the action since plaintiff’s opposition papers, including the New Jersey Certificate of Limited Partnership, indicate that any reference in the agreement to plaintiff as "Didco Urban Renewal Co., Ltd.”, rather than as "Didco Urban Renewal Company”, was merely an inadvertent error.

We have considered defendant’s remaining arguments and find them to be without merit. Concur — Sullivan, J. P., Wallach, Rubin and Tom, JJ.

Didco Urban Renewal Co. v. Mann Management, Inc., 224 A.D.2d 195, 637 N.Y.S.2d 131, 1996 N.Y. App. Div. LEXIS 811 (N.Y. Ct. App. 1996).

Pincite

224 A.D.2d 195 (Didco Urban Renewal Co. v. Mann Management, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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