Nineteen New York Properties Ltd. Partnership v. 535 5th Operating Inc.
| Decision Date | 05 January 1995 |
| Citation | 211 A.D.2d 411,621 N.Y.S.2d 42 |
| Parties | NINETEEN NEW YORK PROPERTIES LIMITED PARTNERSHIP, Plaintiff-Respondent, v. 535 5TH OPERATING INC., et al., Defendants-Respondents, The Corn Club Company, Inc., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before ROSENBERGER, J.P., and WALLACH, KUPFERMAN, ROSS and NARDELLI, JJ.
Order, Supreme Court, New York County (Carmen Beauchamp Ciparick, J.), entered May 21, 1992, which dismissed the third and fifth cross-claims of defendant The Corn Club Company, Inc. (Corn Club), dismissed the first, second, third, part of the fourth and the sixth counterclaims of Corn Club, and denied Corn Club's motion to compel disclosures, unanimously modified to the extent of denying those portions of plaintiff's motion for summary judgment dismissing the first and third counterclaims of defendant Corn Club, and otherwise affirmed; and order (same court, same justice) entered June 24, 1993, which granted plaintiff's cross-motion to dismiss the balance of Corn Club's fourth counterclaim and Corn Club's fifth counterclaim and denied Corn Club's motion for discovery, unanimously modified to the extent of denying the motion to dismiss the balance of Corn Club's fourth counterclaim and Corn Club's fifth counterclaim, and otherwise affirmed; with the result that the first, third, fourth, and fifth counterclaims of Corn Club are ordered reinstated, except that portion of the fourth counterclaim seeking damages for lost profits; and except as so modified, both orders are affirmed without costs.
In 1984 plaintiff became the owner, subject to a 1978 lease of part of the property, of a building at 535-545 Fifth Avenue. Leases and subleases were subsequently entered into and in 1989 Corn Club entered a "sub-sublease" which purported to make it a tenant of defendant-respondent 45th & Fifth Operating Inc. (Operating) with respect to certain space in the building (Space H). On September 5, 1989, it occupied Space H. In October, 1989, however, plaintiff took possession of such Space H and locked Corn Club out, taking the position that Operating was not a sublessee of that space. Corn Club contends that there is a chain of possession of Space H from 1978 through 545 Rest. Corp. and Operating to it in 1989. Surprisingly, plaintiff does not show any such chain entitling it to possession and does not show any use by it of the space or grant of possession thereof to another during that period.
On discovering Corn Club in possession of Space H in 1989, plaintiff locked Corn Club out and brought the instant action for declaratory and injunctive relief. Corn Club's answer set forth six counterclaims, for: (1) injunctive relief restoring it to Space H; (2) a hearing to determine penalties for fraud; (3) a declaratory judgment...
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