N.Y. Tile Wholesale Corp. v. Thomas Fatato Realty Corp.

• Decision Date: 04 May 2022
• Docket Number: 2019-00847, 2019-10874,Index Nos. 49320/01, 515280/18
• Citation: 205 A.D.3d 724,165 N.Y.S.3d 747 (Mem)
• Parties: NEW YORK TILE WHOLESALE CORP., appellant, v. THOMAS FATATO REALTY CORP., et al., respondents (and another action).
• Court: New York Supreme Court — Appellate Division

205 A.D.3d 724
165 N.Y.S.3d 747 (Mem)

NEW YORK TILE WHOLESALE CORP., appellant,
v.
THOMAS FATATO REALTY CORP., et al., respondents (and another action).

2019-00847, 2019-10874
Index Nos. 49320/01, 515280/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 25, 2022
May 4, 2022

Feder Kaszovitz, LLP, New York, NY (Murray L. Skala and Bruce Robins of counsel), for appellant.

Harris Beach, PLLC, White Plains, NY (Darius P. Chafizadeh and Allison B. Fiut of counsel), for respondents.

VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of a lease and for specific performance of a provision of the lease, and a related action, among other things, to recover damages for a violation of Judiciary Law § 487, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), dated December 6, 2018, and (2) an order of the same court dated July 23, 2019. The order dated December 6, 2018, insofar as appealed from, sua sponte, modified a preliminary injunction to permit short-term leasing of the subject property. The order dated July 23, 2019, denied the plaintiff's motion, in effect, to vacate so much of the order dated December 6, 2018, as, sua sponte, modified the preliminary injunction to permit short-term leasing of the subject property.

ORDERED that the appeal from the order dated December 6, 2018, is dismissed, as no appeal lies as of right from a portion of an order that does not decide a motion made on notice (see CPLR 5701[a] ), and leave to appeal has not been granted; and it is further,

ORDERED that the order dated July 23, 2019, is reversed, on the law, the plaintiff's motion, in effect, to vacate so much of the order dated December 6, 2018, as, sua sponte, modified the preliminary injunction is granted, and that portion of the order dated December 6, 2018, is vacated; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In 1986, the plaintiff, as tenant, entered into an agreement with the defendant...