Peach Parking Corp. v. 346 West 40th Street, LLC

Appellate Division of the Supreme Court of New York

Peach Parking Corp. v. 346 West 40th Street, LLC

52 A.D.3d 260, 859 N.Y.S.2d 424

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

DecidedJune 5, 2008

StatusPublished

Cited by4 cases

This text of 52 A.D.3d 260 (Peach Parking Corp. v. 346 West 40th Street, LLC) 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

Peach Parking Corp. v. 346 West 40th Street, LLC, 52 A.D.3d 260, 859 N.Y.S.2d 424 (N.Y. Ct. App. 2008).

Pincite

Opinion

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered October 12, 2007, which granted plaintiffs motion to amend the complaint, granted defendant Hertz Corporation’s motion to interpose a counterclaim and affirmative defense, and denied defendant Kinney System’s motion for costs and fees, unanimously affirmed, without costs.

In this commercial landlord-tenant declaratory judgment action, the court did not improvidently exercise its discretion in granting plaintiff leave to amend its pleadings to add three additional causes of action—against 346 West 40th Street and Kinney for reimbursement for costs of various repairs to the leased premises after it was vacated by Hertz, and against Hertz for reimbursement for the repairs to the extent they were nonstructural and for unpaid rent. Leave was also appropriately granted to Hertz to interpose a counterclaim and the affirmative defense of constructive eviction. There was no showing of prejudice or surprise resulting from the delay in asserting these new claims (see CPLR 3025 [b]; McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]; Fahey v County of Ontario, 44 NY2d 934 [1978]). Nor were the moving papers unreliable or insufficient to support the claims (see Daniels v Empire-Orr, Inc., 151 AD2d 370, 371 [1989]).

[261]*261Costs and fees were properly denied. The imposition of costs in connection with such amendments is discretionary (Continental Cas. Co. v R.S. Look, Inc., 212 AD2d 1064 [1995]; see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3025:13), and the court specifically found that the motions to amend were neither frivolous nor intended to harass Kinney (22 NYCRR 130-1.1). Concur—Saxe, J.P., Nardelli, Catterson and McGuire, JJ. [See 2007 NY Slip Op 34353(U).]

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered October 12, 2007, which granted plaintiffs motion to amend the complaint, granted defendant Hertz Corporation’s motion to interpose a counterclaim and affirmative defense, and denied defendant Kinney System’s motion for costs and fees, unanimously affirmed, without costs.

In this commercial landlord-tenant declaratory judgment action, the court did not improvidently exercise its discretion in granting plaintiff leave to amend its pleadings to add three additional causes of action—against 346 West 40th Street and Kinney for reimbursement for costs of various repairs to the leased premises after it was vacated by Hertz, and against Hertz for reimbursement for the repairs to the extent they were nonstructural and for unpaid rent. Leave was also appropriately granted to Hertz to interpose a counterclaim and the affirmative defense of constructive eviction. There was no showing of prejudice or surprise resulting from the delay in asserting these new claims (see CPLR 3025 [b]; McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]; Fahey v County of Ontario, 44 NY2d 934 [1978]). Nor were the moving papers unreliable or insufficient to support the claims (see Daniels v Empire-Orr, Inc., 151 AD2d 370, 371 [1989]).

[261]*261Costs and fees were properly denied. The imposition of costs in connection with such amendments is discretionary (Continental Cas. Co. v R.S. Look, Inc., 212 AD2d 1064 [1995]; see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3025:13), and the court specifically found that the motions to amend were neither frivolous nor intended to harass Kinney (22 NYCRR 130-1.1). Concur—Saxe, J.P., Nardelli, Catterson and McGuire, JJ. [See 2007 NY Slip Op 34353(U).]

Cite This Page — Counsel Stack

Bluebook (online)

52 A.D.3d 260, 859 N.Y.S.2d 424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peach-parking-corp-v-346-west-40th-street-llc-nyappdiv-2008.

Opinion

Related

Cite This Page — Counsel Stack