Meysar Realty Corp. v. Anndon Restaurant Corp.

277 A.D.2d 99, 716 N.Y.S.2d 297, 2000 N.Y. App. Div. LEXIS 11982

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered September 27, 1999, which, to the extent appealed from, denied defendants’ motion for summary judgment dismissing the complaint and for declaratory relief, unanimously affirmed, with costs.

Summary judgment dismissing plaintiffs first cause of action was properly denied because defendants failed to make out a prima facie case of entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). There are triable issues of fact as to whether defendant Anndon Restaurant Corp. violated its lease with plaintiff by permitting others to use the leased premises without plaintiffs prior written consent.

Also properly denied was that branch of defendants’ summary judgment motion seeking dismissal of plaintiffs claims for an accounting and for attorneys’ fees. Contrary to defendants’ argument, the accounting claim did not seek declaratory relief and was not nonjusticiable for want of a present controversy. Regarding determination of plaintiffs claim for attorneys’ fees, it must await resolution of plaintiffs claim that defendants have violated the lease.

Finally, that part of defendants’ motion seeking a declaration that Anndon had the right to make alterations in the leased premises was also properly denied. No claim was set forth in the underlying pleadings to support defendants’ request for declaratory relief. Concur — Williams, J. P., Mazzarelli, Lerner, Buckley and Friedman, JJ.