From Casetext: Smarter Legal Research

61 West 62nd Owners v. Harkness Apt. Owners

Appellate Division of the Supreme Court of New York, First Department
May 23, 1991
173 A.D.2d 372 (N.Y. App. Div. 1991)

Summary

In 61 W. 62nd Owners Corp. v. Harkness Apt. Owners Corp., 173 A.D.2d 372, 373, 570 N.Y.S.2d 8 [Sup Ct, NYC] the Court granted a Yellowstone Injunction to the Respondents on the condition that they post an undertaking and pay future use and occupancy to the landlord (emphasis added).

Summary of this case from 1644 Broadway LLC v. Jimenez

Opinion

May 23, 1991

Appeal from the Supreme Court, New York County (Irma Vidal Santaella, J.).


This case arises out of a dispute over leasehold obligations under a Master Lease entered into on December 17, 1985 for the commercial portion of premises located at 61 West 62nd Street in Manhattan. Plaintiff-landlord sought, inter alia, a declaration modifying and reforming certain obligations under the Master Lease, particularly with respect to maintenance of the building's atrium, which it contends is defendant-tenant's responsibility as commercial lessee. Defendants sought, and were granted a Yellowstone injunction to prevent termination of the Master Lease pending determination of defendants' affirmative defenses and counterclaims, on condition that defendant-tenant post an undertaking in the amount of $500,000 and pay outstanding and prospective use and occupancy. Defendant did not post the undertaking, contending that it was twice the amount sought for past due rent, and moved to reargue and renew, and for partial summary judgment. Plaintiff cross-moved for entry of a money judgment for outstanding use and occupancy and vacatur of the Yellowstone injunction. The court denied the motion to reargue and renew in its entirety and granted plaintiff's motion for a monetary judgment in its favor.

Initially, we observe that the Notice of Default was not improperly served, as the Master Lease does not prescribe any particular method of notification. Nor did the court err in granting judgment, for "use and occupancy" (see, MMB Assocs. v Dayan, 169 A.D.2d 422), or in conditioning the issuance of the Yellowstone injunction upon future payment of "use and occupancy" (Calvert v Le Tam Realty Corp., 118 A.D.2d 426).

The court did not err in calculating the amount of the judgment, less an offsetting credit in the amount of a promissory note to defendants, pending proof at a later date of the full amounts owed. The amount of the undertaking was not excessive, but was rationally related to the quantum of damages which plaintiff would sustain in the event that defendant is later determined not to have been entitled to the injunction (CPLR 6212 [b]; Margolies v Encounter, Inc., 42 N.Y.2d 475; Weitzen v 130 E. 65th St. Sponsor Corp., 86 A.D.2d 511). The court also properly refused to grant summary judgment dismissing the various causes of action, finding the existence of issues of fact.

Concur — Sullivan, J.P., Carro, Rosenberger, Ross and Smith, JJ.


Summaries of

61 West 62nd Owners v. Harkness Apt. Owners

Appellate Division of the Supreme Court of New York, First Department
May 23, 1991
173 A.D.2d 372 (N.Y. App. Div. 1991)

In 61 W. 62nd Owners Corp. v. Harkness Apt. Owners Corp., 173 A.D.2d 372, 373, 570 N.Y.S.2d 8 [Sup Ct, NYC] the Court granted a Yellowstone Injunction to the Respondents on the condition that they post an undertaking and pay future use and occupancy to the landlord (emphasis added).

Summary of this case from 1644 Broadway LLC v. Jimenez
Case details for

61 West 62nd Owners v. Harkness Apt. Owners

Case Details

Full title:61 WEST 62ND OWNERS CORP., Respondent, v. HARKNESS APARTMENT OWNERS CORP…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: May 23, 1991

Citations

173 A.D.2d 372 (N.Y. App. Div. 1991)
570 N.Y.S.2d 8

Citing Cases

188 Ave. A Take Out Food Corp. v. Lucky Jab Realty Corp.

The landlord, however, correctly argues on this motion that, upon reargument, the court should require the…

The Gap, Inc. v. 44-45 Broadway Leasing Co.

We also find that the trial court did not abuse its discretion in directing that rental arrears be deposited…