518 E. 80th St., Co., LLC v Smith (2005 NYSlipOp 50734(U))

[*1]

518 E. 80th St., Co., LLC v Smith

2005 NYSlipOp 50734(U)

Decided on May 18, 2005

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 18, 2005

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. WILLIAM P. McCOOE, J.P.
HON. WILLIAM J. DAVIS
HON. PHYLLIS GANGEL-JACOB, Justices.
570017/04

518 East 80th Street, Co., LLC, Plaintiff-Respondent-Cross Appellant, 04-079/080

against

David Smith, Defendant-Appellant-Cross- Respondent.

Defendant appeals from an order of the Civil Court, New York County, entered August 5, 2003 (Lucy Billings, J.) which, inter alia, denied his motion for summary judgment dismissing the complaint. Plaintiff cross-appeals from that portion of the aforesaid order which set interim use and occupancy at $910.98 per month.

PER CURIAM:

Order entered August 5, 2003 (Lucy Billings, J.) affirmed, without costs.

We agree that summary dismissal of the complaint is unwarranted, since the plaintiff landlord's conduct in commencing an ultimately unsuccessful nonpayment summary proceeding in 2002 was not inconsistent with and cannot be deemed to have waived its right to prosecute its claims for rent and attorney's fees that remain unresolved in this 1994 action (see generally Sullivan v Brevard Assocs., 66 NY2d 489, 495 [1985]; cf. Ansonia Assocs. v Pearlstein, 122 Misc 2d 566 [1984]).

We have considered the argument raised by plaintiff on its cross appeal and find it [*2]lacking in merit.

This constitutes the decision and order of the court.
Decision Date: May 18, 2005