Emery Roth & Sons v. National Kinney Corp.

44 N.Y. 912

• Court: New York Court of Appeals
• Decided: June 8, 1978
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to the extent of providing that the third counterclaim be dismissed and, except as so modified, affirmed, with costs to appealing defendants. The question certified is answered in the negative.

In its third counterclaim, defendant seeks damages for counsel fees and other expenses incurred in connection with reobtaining possession of the demised premises, putting such premises in good order and preparing them for rerental. However, by failing to assert these claims in the prior summary proceeding based on nonpayment of rent, defendant has impermissibly split a cause of action and is barred from asserting them as a counterclaim in this action (930 Fifth Corp. v King, 42 NY2d 886, 887-888; Century Factors v New Plan Realty Corp., 41 NY2d 1040, 1041; Columbia Corrugated Container v Skyway Container Corp., 37 AD2d 845, affd 32 NY2d 818).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order modified, with costs to appealing defendants, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.