269 Fulton Corp. v. H.A.B. Realty Associates

• Decision Date: 21 January 1992
• Citation: 579 N.Y.S.2d 115,179 A.D.2d 752
• Parties: 269 FULTON CORP., Respondent, v. H.A.B. REALTY ASSOCIATES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 115

579 N.Y.S.2d 115

179 A.D.2d 752

269 FULTON CORP., Respondent, v. H.A.B. REALTY ASSOCIATES, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 21, 1992.

Lynn, Ledwith & Corcoran, Garden City (Robert P. Lynn, Jr., and Leo F. McGinity, Jr., of counsel), for appellant.

J. Michael Gottesman, Garden City (Isaac Blachor, of counsel), for respondent.

Before THOMPSON, J.P., and SULLIVAN, EIBER and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to permanently enjoin the defendant from terminating the plaintiff's tenancy, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (O'Shaughnessy, J.), entered April 9, 1990, which, inter alia, denied the defendant's motion for summary judgment and, upon searching the record, granted summary judgment in favor of the plaintiff.

ORDERED that the order and judgment is affirmed, with costs.

The plaintiff, 269 Fulton Corp., is the tenant of certain premises owned by H.A.B. Realty Associates. The premises are subject to a lease entered into in 1948 by both the defendant's and the plaintiff's predecessors in interest. The lease states that it is to expire in the year 2001. Also, the lease requires that any tenant assigning its interest under the lease is to provide the landlord with an "assumption" by the assignee of the obligations under the lease. In the case of a sublease by the tenant, however, the tenant only has to provide the landlord with a "duplicate original" of the sublease. Finally, the lease required that the premises be used for "ordinary commercial, professional, business or industrial use".

In May of 1987 the plaintiff entered into an agreement with the State University of New York (hereinafter SUNY) whereby it conveyed a possessory interest to SUNY for a period of 10 years, with an option to renew for another 10 years. Subsequently, upon being served with a notice of default, the plaintiff modified this agreement to restrict the exercise of the option for a period ending six months before the expiration date contained in the original 1948 lease.

We find that the court properly denied the defendant's motion for summary judgment and that it properly granted summary judgment in favor of the plaintiff. Contrary to the defendant's contentions, the plaintiff did not convey its entire interest in the lease to SUNY and thus was not required to provide to the defendant an assumption by SUNY (see, J.N.A. Realty Corp. v....