ENGLERT v. MAHONEY

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

Francis P. ENGLERT, Also Known as F.P.E. Realty Company, Respondent, v. Leslie MAHONEY et al., Doing Business as the Mahoney Group Inc., Appellants.

Decided: February 25, 1999

Before:  CARDONA, P.J., MERCURE, SPAIN, CARPINELLO and GRAFFEO, JJ. Waite & Associates P.C. (Stephen J. Waite of counsel), Albany, for appellants. Ralph C. Lewis Jr., Catskill, for respondent.

Appeal from an order of the Supreme Court (Keegan, J.), entered April 29, 1998 in Albany County, which, inter alia, awarded plaintiff compensation for the use and occupancy of his property during the pendency of the action.

Plaintiff is the owner of commercial premises located in the Town of Colonie, Albany County.   Plaintiff leased the premises to defendants, the owners/operators of a merchandise store, for a five-year term commencing November 1, 1993.   On or about March 12, 1998, plaintiff commenced this action and contemporaneously moved for, inter alia, an award for the use and occupancy of his property pursuant to Real Property Law § 220, based upon defendants' failure to pay rent owed from January 1, 1998.   Defendants, claiming they were justified in withholding rent due to unsatisfactory conditions on the premises, cross-moved pursuant to CPLR 3211(a)(5) for dismissal based upon the existence of an arbitration clause in the lease and alternatively sought a stay pending arbitration.   Supreme Court granted plaintiff's application to the extent of directing defendants' attorneys to pay all past due rent held in escrow.   The court further directed defendants to pay all future rent on the due date and denied defendants' cross motion.   Defendants appeal.

 We affirm.   Defendants misinterpret Supreme Court's action as a grant of summary judgment prior to joinder of issue.   Although the application was to some extent inartfully drafted, it is clear that the court granted the application only to the extent of awarding pendente lite relief pursuant to Real Property Law § 220 (see, e.g., Trump CPS v. Meyer, 249 A.D.2d 22, 670 N.Y.S.2d 854).   We cannot say that it was inappropriate for the court to require defendants, as tenants in possession, to continue to pay use and occupancy at the rate provided in the lease on each rental due date until resolution of the underlying action (see, MMB Assocs. v. Dayan, 169 A.D.2d 422, 564 N.Y.S.2d 146;  Eli Haddad Corp. v. Cal Redmond Studio, 102 A.D.2d 730, 731, 476 N.Y.S.2d 864).

 We also find that the cross motion was properly denied.   Under the narrow language of the arbitration clause contained in the lease 1 (see, Silverstein Props. v. Paine, Webber, Jackson & Curtis, 65 N.Y.2d 785, 493 N.Y.S.2d 110, 482 N.E.2d 906), the tenants must arbitrate claimed breaches of the lease by the landlord.   The landlord is not similarly limited and, therefore, plaintiff is free to prosecute the instant action.

ORDERED that the order is affirmed, with costs.

FOOTNOTES

1.   Clause 11 of the lease states:If landlord breaches said agreement the parties hereby agree to use the American Arbitration Association to resolve their disputes and the prevailing party will be allowed to recover costs, expenses and damages of said arbitration including but not limited to attorneys fees.

CARDONACARDONA, P.J.

MERCURE, SPAIN, CARPINELLO and GRAFFEO, JJ., concur.

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