Ives v. Base Lodge, Inc.

46 A.D.2d 622, 359 N.Y.S.2d 1001, 1974 N.Y. App. Div. LEXIS 3962

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1974
• Status: Published

Opinion

Order, Supreme Court, New York County, entered on November 27, 1973, granting plaintiff’s motion for summary judgment, made pursuant to CPLR 3213, and directing an assessment of damages and judgment entered thereon on May 21, 1974, unanimously modified, in the exercise of discretion, to the extent of staying execution on said judgment pending the outcome of the action commenced by defendant-appellant in Nassau County, on condition that defendant proceed expeditiously with the prosecution of the Nassau County action and on the further condition that it provide an undertaking securing payment of the judgment affirmed hereon. In all other respects the order and judgment appealed from are unanimously affirmed, without costs. The promissory note in suit arose out of a sublease transaction which is the subject matter of the Nassau County action instituted by the defendant herein. In that action this defendant, as plaintiff, alleged, as it does in the present action, that the plaintiff herein improperly refused to restore the leased premises following a fire and attempted to terminate the sublease. Such allegations, while they are inextricably intertwined with this plaintiff’s present claims, are not a bar to ' judgment on the note, but would have appropriately constituted a counterclaim herein for a sum exceeding the amount of the judgment appealed from. Under the circumstances, execution of such judgment is stayed, as indicated above. Concur—■ Nunez, J. P., Kupferman, Murphy, Steuer and Capozzoli, JJ.