700 MADISON PARTNERS LLC v. HUBRECHT (2008)

Judgment, Supreme Court, New York County (Karla Moskowitz, J.), entered December 30, 2005, awarding plaintiff damages and bringing up for review an order and judgment (one paper), same court and Justice, entered December 29, 2005, which, inter alia, granted plaintiff's motion for summary judgment and denied defendant's cross motion for a stay of the action pending a determination of an appeal before the New York City Tax Appeals Tribunal, unanimously affirmed, with costs.

Pursuant to the terms of the parties' lease, defendant agreed to pay all transfer taxes and to indemnify plaintiff against his failure to pay same.   The Department of Finance (DOF) subsequently assessed both parties for a transfer tax, and after DOF's Conciliation Bureau rejected defendant's claim that no tax was owed, he sought relief from the New York City Tax Appeals Tribunal in an action that remains pending.   Despite numerous requests, defendant failed to provide plaintiff with copies of the decision of the Conciliation Bureau or the Tax Appeals Tribunal filings, and so as to protect its leasehold, plaintiff paid the transfer tax, and then filed suit for reimbursement under the indemnification clause of the parties' lease.

There being no dispute as to defendant's obligation to pay the transfer tax pursuant to the lease, and plaintiff being entitled to protect its leasehold by paying the tax and seeking restitution, the motion court properly granted summary judgment in plaintiff's favor (see Universal Children's Wear v. Galasso, 133 A.D.2d 623, 519 N.Y.S.2d 731 [1987] ).   There was also no abuse of discretion by the court in declining to stay the instant matter pending resolution of the tax appeal, as the two actions do not share complete identity of parties or issues (Hope's Windows v. Albro Metal Prods. Corp., 93 A.D.2d 711, 712, 460 N.Y.S.2d 580 [1983], lv. dismissed 59 N.Y.2d 968 [1983] ).

We have considered defendant's remaining arguments and find them unavailing.