Fay's Inc. v. Park Centre Development, Inc.

226 A.D.2d 1067, 642 N.Y.S.2d 103, 1996 N.Y. App. Div. LEXIS 5527

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 19, 1996
• Status: Published

Opinion

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court did not err in granting plaintiff a Yellowstone injunction (see, First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630, rearg denied 22 NY2d 827; see also, Waldbaum, Inc. v Fifth Ave. of Long Is. Realty Assocs., 85 NY2d 600; 225 E. 36th St. Garage Corp. v 221 E. 36th Owners Corp., 211 AD2d 420, 421; Matter of Langfur, 198 AD2d 355, 356).

The court erred, however, in failing to grant defendant’s cross motion for a change of venue. In addition to seeking a judgment declaring the rights of the parties under the lease, the complaint also seeks a judgment enjoining defendant from terminating the lease or otherwise taking action to evict plaintiff from the premises. The judgment sought "would affect * * * the possession, use or enjoyment of’ (CPLR 507) the subject real property by plaintiff and, thus, is a "local” action that must be brought in Cattaraugus County, the situs county (see, Spellman Food Servs. v Patrick, 90 AD2d 791; cf., Port Bay Assocs. v Soundview Shopping Ctr., 197 AD2d 848). Therefore, we modify the order by granting defendant’s cross motion for a change of venue from Onondaga County to Cattaraugus County. (Appeal from Order of Supreme Court, Onondaga County, Nicholson, J.—Change of Venue.) Present—Pine, J. P., Lawton, Wesley, Balio and Davis, JJ.