Moschera & Catalano, Inc. v. Advanced Structures Corp.
| Citation | 478 N.Y.S.2d 641,104 A.D.2d 306 |
| Parties | MOSCHERA & CATALANO, INC., Plaintiff-Respondent, v. ADVANCED STRUCTURES CORP., Defendant-Appellant. |
| Decision Date | 02 August 1984 |
| Court | New York Supreme Court Appellate Division |
E.S. Goldweber, New York City, for plaintiff-respondent.
W.J. Zumbrunn, Babylon, for defendant-appellant.
Before KUPFERMAN, J.P., and ASCH, SILVERMAN and KASSAL, JJ.
Order, Supreme Court, New York County, entered November 17, 1983, which denied defendant's motion to change the venue of the action from New York County to Suffolk County, unanimously reversed, on the law, with costs and disbursements, the motion granted and the action transferred to Supreme Court, Suffolk County.
Plaintiff, owner of real property located in Deer Park, Suffolk County, had entered into a lease with defendant, as tenant, concerning 1400 sq. feet of space, which was subsequently amended to include the entire premises. The three year lease contained a renewal option for a similar period to commence in 1979. Following a disagreement between the parties with respect to the tenant's right to renew after 1982, plaintiff brought this action in New York County, where plaintiff's principal office is located, for a declaratory judgment as to the rights and legal relationship of the parties, including whether (1) defendant had an option to renew the lease in perpetuity or whether the right would terminate in August 1982, (2) the lease was void for lack of mutuality and (3) the lease was void as unconscionable. The second, third and fourth causes of action in the complaint are for rescission of the lease.
CPLR § 507 directs that the place of trial of an action "in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property shall be in the county in which any part of the subject of the action is situated." Clearly, the relief sought in this action does affect defendant's use, possession or enjoyment of the property. Any declaratory judgment could effect a termination of the tenant's "possession, use or enjoyment" or interest in the property and the second, third and fourth causes seek to rescind the lease. Therefore, the motion to change the venue from New York County to Suffolk County, where the property is located, should have been granted (see Spellman Food Services, Inc. v. Partrick, 90 A.D.2d 791, 455 N.Y.S.2d 398; Arnold Constable Corporation v. Staten Island Mall, 61 A.D.2d 826, 402 N.Y.S.2d 431)....
To continue reading
Request your trial
-
Baker v. Latham Sparrowbush Associates
...his action was brought in the wrong county. N.Y.Civ.Prac. L. & R. 507 (McKinney 1994); see Moschera & Catalano, Inc. v. Advanced Structures Corp., 104 A.D.2d 306, 478 N.Y.S.2d 641 (1984) (mem.); Spellman Food Servs., Inc. v. Partrick, 90 A.D.2d 791, 455 N.Y.S.2d 398 (1982) On February 13, 1......
-
Suki Bus. v. E. Coast Realtors, Inc.
... ... County (see CPLR 507; Moschera & Catalano v ... Advanced Structures Corp., 104 ... ...
-
Burton v. Ontra Inc.
...A.D.2d 656, 619 N.Y.S.2d 334; Slutsky v. Roc-Le Triomphe Assoc., 129 A.D.2d 879, 514 N.Y.S.2d 144; Moschera & Catalano, Inc. v. Advanced Structures Corp., 104 A.D.2d 306, 478 N.Y.S.2d 641.) Unfamiliar with the intracacies of practice and procedure, apologizes for not having adhered to CPLR ......
-
Suki Bus., Inc. v. E. Coast Realtors, Inc.
...the possession, use, or enjoyment of real property situated in Saratoga County (see CPLR 507 ; Moschera & Catalano v. Advanced Structures Corp., 104 A.D.2d 306, 306–307, 478 N.Y.S.2d 641 ; Spellman Food Servs. v. Partrick, 90 A.D.2d 791, 455 N.Y.S.2d 398 ). Further, the causes of action aro......