WESTHAMPTON CABINS CABANAS OWNERS CORP v. WESTHAMPTON BATH TENNIS CLUB OWNERS CORP

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

WESTHAMPTON CABINS & CABANAS OWNERS CORP., Respondent, et al., Plaintiffs, v. WESTHAMPTON BATH & TENNIS CLUB OWNERS CORP., Appellant (and a Third-Party Action).

Decided: November 18, 2002

CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER and BARRY A. COZIER, JJ. Dollinger, Gonski & Grossman, Carle Place, N.Y. (Matthew Dollinger and Floyd G. Grossman of counsel), for appellant. Schecter & Brucker, P.C., New York, N.Y. (Eric Jaffe and Howard Schecter of counsel), for respondent.

In an action, inter alia, for a judgment declaring an amendment to a certain ground lease null and void, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Floyd, J.), dated July 16, 2001, as, upon renewal, denied its cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court, upon renewal, properly denied the defendant's cross motion for summary judgment dismissing the complaint in light of the disputed issues of fact with regard to the July 2, 1996, amendment to the parties' ground lease (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

The respondent's failure to seek a Yellowstone injunction (see First Nat. Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630, 290 N.Y.S.2d 721, 237 N.E.2d 868) does not constitute an admission that it breached the subject lease.   It means simply that “there has been no toll of the period in which to cure, and, consequently, there has been an irrevocable lapse of the time to cure” (Norlee Wholesale Corp. v. 4111 Hempstead Turnpike Corp., 138 A.D.2d 466, 470, 525 N.Y.S.2d 873;  see First Nat. Stores v. Yellowstone Shopping Center, 21 N.Y.2d 630, 290 N.Y.S.2d 721, 237 N.E.2d 868;  Christine's Shoes Corp. v. 251 Main St. Corp., 267 A.D.2d 415, 701 N.Y.S.2d 438).   The respondent may still litigate the substantive issue of whether it has defaulted under the lease.

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