Teddy's Drive-In, Inc. v. Miller

Appellate Division of the Supreme Court of New York

Teddy's Drive-In, Inc. v. Miller

32 A.D.2d 930, 303 N.Y.S.2d 345, 1969 N.Y. App. Div. LEXIS 3485

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

DecidedJuly 2, 1969

StatusPublished

This text of 32 A.D.2d 930 (Teddy's Drive-In, Inc. v. Miller) 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

Teddy's Drive-In, Inc. v. Miller, 32 A.D.2d 930, 303 N.Y.S.2d 345, 1969 N.Y. App. Div. LEXIS 3485 (N.Y. Ct. App. 1969).

Pincite

Opinion

In an action for a judgment declaring, inter alia, that plaintiff has the right to remove its diner structure from the real property of which plaintiff is "the lessee, in which action defendants counterclaimed for ejectment on the basis of plaintiff’s alleged breach of the lease, defendants appeal from a judgment of the Supreme Court, Queens County, dated July 28, 1967, which, inter alia, (1) decreed that plain[931]*931tiff (a) had not breached its lease by failing to keep the diner open and (b) has the right to remove the diner; and (2) dismissed the counterclaim. Judgment modified, on the law and the facts, by (1) deleting therefrom so much of decretal paragraph “ 2 ” as declared that plaintiff has the right to remove the diner and (2) adding a decretal paragraph that plaintiff may not use the demised premises as a parking lot except in connection with a diner conducted thereon. As so modified, judgment affirmed, without costs. We are of the opinion that the language of the lease clearly provides that the diner may not be removed until the termination of the lease and that the premises may be used for parking only for a business conducted on the premises and not for a business conducted on adjoining premises. Beldock, P. J., Christ, Munder and Martuseello, JJ., concur; Rabin, J., dissents and votes to affirm the judgment.

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

In an action for a judgment declaring, inter alia, that plaintiff has the right to remove its diner structure from the real property of which plaintiff is "the lessee, in which action defendants counterclaimed for ejectment on the basis of plaintiff’s alleged breach of the lease, defendants appeal from a judgment of the Supreme Court, Queens County, dated July 28, 1967, which, inter alia, (1) decreed that plain[931]*931tiff (a) had not breached its lease by failing to keep the diner open and (b) has the right to remove the diner; and (2) dismissed the counterclaim. Judgment modified, on the law and the facts, by (1) deleting therefrom so much of decretal paragraph “ 2 ” as declared that plaintiff has the right to remove the diner and (2) adding a decretal paragraph that plaintiff may not use the demised premises as a parking lot except in connection with a diner conducted thereon. As so modified, judgment affirmed, without costs. We are of the opinion that the language of the lease clearly provides that the diner may not be removed until the termination of the lease and that the premises may be used for parking only for a business conducted on the premises and not for a business conducted on adjoining premises. Beldock, P. J., Christ, Munder and Martuseello, JJ., concur; Rabin, J., dissents and votes to affirm the judgment.

Cite This Page — Counsel Stack

Bluebook (online)

32 A.D.2d 930, 303 N.Y.S.2d 345, 1969 N.Y. App. Div. LEXIS 3485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/teddys-drive-in-inc-v-miller-nyappdiv-1969.