Optical Exchange of 35th Street, Inc. v. Hong

Appellate Division of the Supreme Court of New York

Optical Exchange of 35th Street, Inc. v. Hong

292 A.D.2d 218, 738 N.Y.S.2d 565, 2002 N.Y. App. Div. LEXIS 2421

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

DecidedMarch 12, 2002

StatusPublished

Cited by3 cases

This text of 292 A.D.2d 218 (Optical Exchange of 35th Street, Inc. v. Hong) 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.

Bluebook

Optical Exchange of 35th Street, Inc. v. Hong, 292 A.D.2d 218, 738 N.Y.S.2d 565, 2002 N.Y. App. Div. LEXIS 2421 (N.Y. Ct. App. 2002).

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Opinion

Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about May 8, 2001, which, inter alia, granted defendants’ motion for summary judgment dismissing the complaint and entitling defendants to recover upon their counterclaim for attorneys’ fees, unanimously modified, on the law, to declare in defendants’ favor that plaintiff tenant’s assignment of its lease with defendant owners was in violation of the lease provision governing subletting and assignment, and otherwise affirmed, without costs.

The motion court properly found that plaintiff tenant was in violation of its commercial lease with defendant owners by reason of its assignment of the lease in violation of the clause therein relating to subletting or assignment. Contrary to plaintiffs argument, the assignment at issue did not meet the lease criteria for dispensing with defendant landlords’ consent to assignment. Such consent to assignment admittedly not having been obtained by plaintiff, plaintiff’s breach of the lease was plainly established. While the motion court correctly found in defendants’ favor, the proper disposition of plaintiffs cause of action seeking declaratory relief was not dismissal but a declaration in defendants’ favor (see, Lanza v Wagner, 11 NY2d 317, 334).

We have considered plaintiffs various remaining arguments, including its challenge to the award of attorneys’ fees on defendants’ counterclaim, and find them to be without unavailing. Concur — Tom, J.P., Andrias, Saxe, Wallach and Rubin, JJ.

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Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about May 8, 2001, which, inter alia, granted defendants’ motion for summary judgment dismissing the complaint and entitling defendants to recover upon their counterclaim for attorneys’ fees, unanimously modified, on the law, to declare in defendants’ favor that plaintiff tenant’s assignment of its lease with defendant owners was in violation of the lease provision governing subletting and assignment, and otherwise affirmed, without costs.

The motion court properly found that plaintiff tenant was in violation of its commercial lease with defendant owners by reason of its assignment of the lease in violation of the clause therein relating to subletting or assignment. Contrary to plaintiffs argument, the assignment at issue did not meet the lease criteria for dispensing with defendant landlords’ consent to assignment. Such consent to assignment admittedly not having been obtained by plaintiff, plaintiff’s breach of the lease was plainly established. While the motion court correctly found in defendants’ favor, the proper disposition of plaintiffs cause of action seeking declaratory relief was not dismissal but a declaration in defendants’ favor (see, Lanza v Wagner, 11 NY2d 317, 334).

We have considered plaintiffs various remaining arguments, including its challenge to the award of attorneys’ fees on defendants’ counterclaim, and find them to be without unavailing. Concur — Tom, J.P., Andrias, Saxe, Wallach and Rubin, JJ.

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Bluebook (online)

292 A.D.2d 218, 738 N.Y.S.2d 565, 2002 N.Y. App. Div. LEXIS 2421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/optical-exchange-of-35th-street-inc-v-hong-nyappdiv-2002.

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