Henry Modell and Co., Inc. v. Baer Mark & Upham

Decision Date03 December 1991
Citation178 A.D.2d 139,576 N.Y.S.2d 574
CourtNew York Supreme Court — Appellate Division
PartiesHENRY MODELL AND CO., INC., Plaintiff-Appellant, v. BAER MARKS & UPHAM, George H. Colin and Camera Barns, Inc., Defendants-Respondents.

Before MILONAS, J.P., and ROSENBERGER, KUPFERMAN, ROSS and ASCH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Francis N. Pecora, J.), entered October 2, 1990, which granted defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint, unanimously affirmed, with costs. Order of the same court and justice, entered September 19, 1990, which granted plaintiff's motion for reargument, and, upon reargument, adhered to the decision underlying the order entered on October 2, 1990, on the ground that there was no showing that the court "either misapprehended the relevant facts or misapplied a controlling principle of law," is deemed to have denied the motion for reargument, and, so considered, the appeal therefrom is dismissed, without costs.

The present appeal is merely another attempt by plaintiff to circumvent prior determinations of both this court and the New York Court of Appeals specifically finding that it has no possessory interest in leasehold premises located at 198 Broadway, and therefore is not entitled to recover use and occupancy (Minister, Elders & Deacons of the Reformed Protestant Dutch Church of the City of New York v. 198 Broadway, Inc., 88 A.D.2d 511, 450 N.Y.S.2d 4, aff'd, 59 N.Y.2d 170, 464 N.Y.S.2d 406, 451 N.E.2d 164; Henry Modell and Co., Inc. v. Minister, Elders & Deacons of the Reformed Protestant Dutch Church of the City of New York, 68 N.Y.2d 456, 510 N.Y.S.2d 63, 502 N.E.2d 978). In view of these prior determinations, IAS properly dismissed the present action seeking monetary damages for breach of an escrow agreement. The record reveals that defendant Camera Barns ceased placing monthly rent into an interest-bearing escrow account, and that defendants Baer Marks and Upham and George H. Colin released the escrow funds to defendant Camera Barns only after the Court of Appeals determined, in June 1983, that plaintiff had no possessory interest in the leasehold and was not entitled to recover use and occupancy (68 N.Y.2d supra, at 459-460, 510 N.Y.S.2d 63, 502 N.E.2d 978; 59 N.Y.2d supra, at 175-176, 464 N.Y.S.2d 406, 451 N.E.2d 164). Thus, plaintiff's claim to the escrow funds is without merit.

We have considered plaintiff's other arguments and find them...

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