107 48 QUEENS BLVD HOLDING CORP v. ABC BROKERAGE INC

Reset A A Font size: Print

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

107-48 QUEENS BLVD. HOLDING CORP., Respondent, v. ABC BROKERAGE INC., et al., Defendants,

Maredin Rest. Corp., Appellant (Action No. 1). MAREDIN REST. CORP., Appellant, v. 107-48 QUEENS BLVD. HOLDING CORP., Respondent, et al., Defendants (Action No. 2).

Decided: April 28, 1997

Before ROSENBLATT, J.P., and MILLER, THOMPSON and FRIEDMANN, JJ. Nicholas & Fotiadis, Bellmore (John Fotiadis, of counsel), for appellant. Pearlman Apat & Futterman, Kew Gardens (Martin M. Seinfeld, of counsel), for respondent.

In related actions, inter alia, to recover damages for breach of a lease which were previously joined for trial, Maredin Rest. Corp. appeals from an order of the Supreme Court, Queens County (Price, J.), dated September 20, 1996, which denied its motion, inter alia, to remove a summary nonpayment proceeding entitled 107-48 Queens Blvd. Holding Corp. v Maredin Rest. Corp., pending in Civil Court, Queens County, under Index No. 65405/96, to the Supreme Court, Queens County, and to consolidate that proceeding with the instant actions.

ORDERED that the order is affirmed, with costs.

In the lease between the appellant and the respondent, the appellant contractually agreed not to interpose counterclaims in the summary proceeding.   This provision of the lease may not be circumvented by consolidating the summary proceeding with the Supreme Court actions (see, Titleserv, Inc. v. Zenobio, 210 A.D.2d 310, 619 N.Y.S.2d 768;  Hanlon & White Assoc. v. Schultz, 121 Misc.2d 13, 467 N.Y.S.2d 23).

The parties' remaining contentions are without merit.

MEMORANDUM BY THE COURT.

Copied to clipboard