Scheller v. MacMarty, Inc.

177 A.D.2d 689, 576 N.Y.S.2d 1009, 1991 N.Y. App. Div. LEXIS 15017

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 1991
• Status: Published

Opinion

In an action, inter alia, to enjoin the defendant from terminating the plaintiffs’ lease, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Donovan, J.), entered February 16, 1990, as, upon their motion for a preliminary injunction, found that they had materially breached the lease, and dismissed the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the complaint is reinstated, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith.

In this action arising from a commercial lease, the plaintiff tenants of the defendant landlord moved for a Yellowstone injunction (see, First Natl. Stores v Yellowstone Shopping Center, 21 NY2d 630). In addressing this application, the court found that the plaintiffs’ breach of the lease was "substantial and material”, and, accordingly, dismissed "the balance of the complaint for injunction, specific performance and punitive damages”. No proper motion for summary judgment was before the court. Therefore, it was improper for the court to effectively grant summary judgment in the defendant’s favor (see, Guggenheimer v Ginzburg, 43 NY2d 268; see also, Rovello v Orofino Realty Co., 40 NY2d 633; Mihlovan v Grozavu, 72 NY2d 506; CPLR 3211 [c]).

We have examined the parties’ remaining contentions and find that none mandate a contrary result. Rosenblatt, J. P., Miller, Ritter and Copertino, JJ., concur.