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Roth Sons v. National Kinney Corporation

Court of Appeals of the State of New York
Jun 8, 1978
44 N.Y.2d 912 (N.Y. 1978)

Summary

holding that where defendant failed to assert a claim in a prior proceeding arising out of the same transaction or event, he "impermissibly split a cause of action and [was] barred from asserting [it] as a counterclaim" in the current proceeding

Summary of this case from Weitz v. Wagner

Opinion

Argued April 26, 1978

Decided June 8, 1978

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, MARTIN B. STECHER, J.

Jill C. Lesser, Michael A. Lacher and Joseph Heller for appellants.

Colleen McMahon and Robert L. Laufer for respondents.


MEMORANDUM.

The order of the Appellate Division should be modified to the extent of providing that the third counterclaim be dismissed and, except as so modified, affirmed, with costs to appealing defendants. The question certified is answered in the negative.

In its third counterclaim, defendant seeks damages for counsel fees and other expenses incurred in connection with reobtaining possession of the demised premises, putting such premises in good order and preparing them for rerental. However, by failing to assert these claims in the prior summary proceeding based on nonpayment of rent, defendant has impermissibly split a cause of action and is barred from asserting them as a counterclaim in this action (930 Fifth Corp. v King, 42 N.Y.2d 886, 887-888; Century Factors v New Plan Realty Corp., 41 N.Y.2d 1040, 1041; Columbia Corrugated Container v Skyway Container Corp., 37 A.D.2d 845, affd 32 N.Y.2d 818).

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.

Order modified, with costs to appealing defendants, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.


Summaries of

Roth Sons v. National Kinney Corporation

Court of Appeals of the State of New York
Jun 8, 1978
44 N.Y.2d 912 (N.Y. 1978)

holding that where defendant failed to assert a claim in a prior proceeding arising out of the same transaction or event, he "impermissibly split a cause of action and [was] barred from asserting [it] as a counterclaim" in the current proceeding

Summary of this case from Weitz v. Wagner
Case details for

Roth Sons v. National Kinney Corporation

Case Details

Full title:EMERY ROTH SONS, Appellant, v. NATIONAL KINNEY CORPORATION et al.…

Court:Court of Appeals of the State of New York

Date published: Jun 8, 1978

Citations

44 N.Y.2d 912 (N.Y. 1978)
407 N.Y.S.2d 640
379 N.E.2d 168

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