SEAFOOD INCORPORATED v. [And A Third-Party Action]

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Supreme Court, Appellate Division, First Department, New York.

H.K.D. SEAFOOD INCORPORATED, Plaintiff-Respondent, v. 25 NORTH MOORE ASSOCIATES, LLC, et al., Defendants-Appellants, KCH Construction, LLC, Defendant. [And A Third-Party Action]

Decided: April 25, 2000

WILLIAMS, J.P., MAZZARELLI, RUBIN, BUCKLEY and FRIEDMAN, JJ. Donald Eng, for Plaintiff-Respondent. Richard S. Sklarin, for Defendants-Appellants.

Order, Supreme Court, New York County (Edward Lehner, J.), entered January 21, 1999, which, in an action by plaintiff commercial tenant against, among others, defendants-appellants landlord and managing agent for damages sustained as a result of a constructive eviction, granted plaintiff's motion for partial summary judgment against appellants on the issue of liability, unanimously affirmed, with costs.

Appellants were accorded a full and fair opportunity in the Civil Court holdover proceeding appellant landlord had commenced against plaintiff to litigate the issue of whether plaintiff had been constructively evicted when it was deprived of the refrigerated space that was part of the leased premises.   Accordingly, appellants are collaterally estopped from asserting otherwise in this action (see, P.W.B. Enters. v. Moklam Enters., 221 A.D.2d 184, 633 N.Y.S.2d 159).   As the Civil Court held, even if appellants did not themselves own the compressor that maintained the refrigeration and did not themselves cause the compressor to be removed from the premises, they certainly were aware that the compressor was being removed, and took no steps to restore refrigeration (see, id.).   We have considered appellants' other contentions and find them unavailing.

MEMORANDUM DECISION.