Joseph P. Day Realty Corp. v. Davidson

Appellate Division of the Supreme Court of New York

Joseph P. Day Realty Corp. v. Davidson

209 A.D.2d 353, 619 N.Y.S.2d 553

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

DecidedNovember 29, 1994

StatusPublished

This text of 209 A.D.2d 353 (Joseph P. Day Realty Corp. v. Davidson) 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.

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Joseph P. Day Realty Corp. v. Davidson, 209 A.D.2d 353, 619 N.Y.S.2d 553 (N.Y. Ct. App. 1994).

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Opinion

—Order of the Supreme Court, New York County (Peter Tom, J.), entered on December 28,1993, which, inter alia, granted plaintiffs motion for partial summary judgment of liability for rent due through June 1, 1991, but directed that entry of judgment be stayed pending determination of the affirmative defenses and counterclaims, is unanimously modified, on the law, to the extent of awarding plaintiff $70,389.51, representing rent due as of the date of the motion, and the remaining causes of action and affirmative defenses are severed, the counterclaims are dismissed, and otherwise affirmed, without costs.

Motion of defendant-respondent to enlarge the record is denied, without costs.

We hold that on this record it was error to withhold entry of judgment for the rent due as to which the court awarded partial summary judgment. Plaintiff presented a prima facie case for unpaid rent, and plaintiff was thus entitled to partial summary judgment (see, CIT Group/Factoring Mfrs. Hanover v Supermarkets Gen. Corp., 172 AD2d 278). We agree with the court’s reasoning that the remaining claims must await completion of discovery. Concur—Murphy, P. J., Sullivan, Rosenberger and Nardelli, JJ.

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—Order of the Supreme Court, New York County (Peter Tom, J.), entered on December 28,1993, which, inter alia, granted plaintiffs motion for partial summary judgment of liability for rent due through June 1, 1991, but directed that entry of judgment be stayed pending determination of the affirmative defenses and counterclaims, is unanimously modified, on the law, to the extent of awarding plaintiff $70,389.51, representing rent due as of the date of the motion, and the remaining causes of action and affirmative defenses are severed, the counterclaims are dismissed, and otherwise affirmed, without costs.

Motion of defendant-respondent to enlarge the record is denied, without costs.

We hold that on this record it was error to withhold entry of judgment for the rent due as to which the court awarded partial summary judgment. Plaintiff presented a prima facie case for unpaid rent, and plaintiff was thus entitled to partial summary judgment (see, CIT Group/Factoring Mfrs. Hanover v Supermarkets Gen. Corp., 172 AD2d 278). We agree with the court’s reasoning that the remaining claims must await completion of discovery. Concur—Murphy, P. J., Sullivan, Rosenberger and Nardelli, JJ.

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209 A.D.2d 353, 619 N.Y.S.2d 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-p-day-realty-corp-v-davidson-nyappdiv-1994.

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