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River Park Residences, LP v Richman Plaza Garage Corp.
2015 NY Slip Op 50975(U) [48 Misc 3d 129(A)]
Decided on June 30, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 30, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570117/15

River Park Residences, LP, Petitioner-Landlord-Respondent, -

against

Richman Plaza Garage Corp., Respondent-Tenant-Appellant.


Tenant appeals from an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), dated December 11, 2014, which denied its motion to dismiss the petition in a holdover summary proceeding, granted landlord's cross motion for summary judgment of possession, and set the matter down for a hearing to determine the reasonable value of landlord's attorney's fees.

Per Curiam.

Order (Donald A. Miles, J.), dated December 11, 2014, modified by denying landlord's cross motion for summary judgment and vacating the court's directive for a hearing on landlord's application for attorney's fees; as modified, order affirmed, without costs.

This commercial holdover proceeding, based upon tenant's alleged breach of a lease provision requiring it to "account to landlord" for increased parking charges collected, is not susceptible to summary disposition. Tenant's breach of the lease was not conclusively established. Contrary to landlord's claim, Supreme Court's determination denying tenant's application for Yellowstone relief - on the ground that tenant moved for an injunction "after the running of the applicable cure period" - was not an adjudication on the merits of the validity of landlord's termination of the lease and does not constitute law of the case (see 875 W. 181 Owners Corp. v KB Gallery, LLC, 124 AD3d 549 [2015]; Curry v 365 W. 19th St. Owners Corp., 249 AD2d 82 [1998]).


Nor is a summary determination otherwise warranted on this record. So far as shown, the parties' lease does not require any particular form of accounting, and we cannot determine whether the documents furnished by tenant in response to the notice to cure constitute an accounting, since these documents are not in the record.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur


Decision Date: June 30, 2015