Subway Real Estate Corp. v. Saleem

2020 NY Slip Op 05609, 187 A.D.3d 495, 130 N.Y.S.3d 293

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 8, 2020
• Docket: Index No. 652759/17 Appeal No. 11989 Case No. 2019-3724
• Status: Published

Opinion

Subway Real Estate Corp. v Saleem (2020 NY Slip Op 05609)

Subway Real Estate Corp. v Saleem

2020 NY Slip Op 05609

Decided on October 08, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 08, 2020
Before: Manzanet-Daniels, J.P., Gische, Gesmer, Singh, JJ.

Index No. 652759/17 Appeal No. 11989 Case No. 2019-3724

[*1]Subway Real Estate Corp., Plaintiff-Appellant-Respondent,

v

Muhammad Saleem, Defendant-Respondent-Appellant, Muhammad Malik, Defendant.

Kaufman & Kahn LLP, New York (Robert L. Kahn of counsel), for appellant-respondent.

Davidoff Hutcher & Citron LLP, New York (Matthew R. Yogg of counsel), for respondent-appellant.

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered on or about March 26, 2019, which, insofar as appealed from as limited by the briefs, granted defendant Saleem's motion to dismiss the first and second causes of action as against him only to the extent predicated upon the parties' sublease, unanimously modified, on the law, to grant the motion as to the first cause of action in its entirety, and otherwise affirmed, without costs.

The court correctly concluded that, in light of the settlement agreement, plaintiff's claims for reimbursement of the payment of real estate taxes it made pursuant to that agreement and the legal fees it incurred in the settled litigations could not be premised on repayment or indemnification obligations owed by defendants pursuant to a purported sublease but could be based only on the terms of the settlement agreement.

However, even viewed in the light most favorable to plaintiff, the terms of the settlement agreement cannot be read to provide for the repayment of the settlement payment of real estate taxes. Thus, the first cause of action should be dismissed in its entirety.

The court correctly declined to dismiss the second cause of action, which seeks recovery of legal fees incurred in the settled litigations, since, under paragraph 23(a) of the settlement agreement, plaintiff specifically reserved the right to its claim for such fees.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 8, 2020