Opinion
Motion No. M-3352
03-13-2014
875 West 181 Owners Corp. v. KB Gallery, LLC - 875 Riverview Realty LLC
Leave to appeal from the Appellate Term granted, as indicated; interim relief granted by order of a Justice of this Court dated June 21, 2013 continued pending hearing and determination of the appeal; all concur except Friedman, J., who dissents in a memorandum as follows:
, J.P. (dissenting)
I respectfully dissent from the majority's decision to grant the motion by tenant-intervenor-respondent 875 Riverview Realty LLC (RVR) for leave to appeal to this Court from an order of the Appellate Term striking its answer in this summary holdover proceeding and for a stay of eviction pending determination of the appeal. As a matter of prior adjudication, RVR is bound by this Court's decision against its predecessor-in-interest, tenant-respondent KB Gallery, LLC, in an earlier action by KB Gallery against the landlord (petitioner herein), 875 W. 181 Owners Corp. (Owners Corp.). The order in the prior action gave effect to Owners Corp.'s termination of the lease by affirming the denial of KB Gallery's motion for Yellowstone relief and vacating an interim stay of the notice of termination (KB Gallery, LLC v 875 W. 181 Owners Corp., 76 AD3d 909 [1st Dept 2010]). Indeed, in affirming the striking of RVR's answer in this action, Appellate Term relied precisely on our decision in KB Gallery as conclusively establishing that the lease is no longer in effect. When, after we decided KB Gallery, KB Gallery purported to assign the already terminated lease back to RVR (which had originally assigned it to KB Gallery), RVR took only whatever rights KB Gallery had under the lease — which, under this Court's decision, were nothing. As KB Gallery's assignee and successor-in-interest, RVR is bound by the decision we rendered against KB Gallery as a matter of res judicata. That a subsequent decision of this Court (Village Ctr. for Care v Sligo Realty & Serv. Corp., 95 AD3d 219 [1st Dept 2012]) may have clarified the law as stated in our KB Gallery decision is irrelevant to the res judicata effect of KB Gallery on the particular lease at issue in that case and this one — that lease was held to have been effectively terminated and cannot be revived.
In granting the motion for leave to appeal, the majority must of necessity believe that there may be some basis upon which to reverse Appellate Term's decision. I do not understand how the majority could see the possibility of a reversal if it took into consideration the well settled principles of the law of prior adjudication that have long guided our jurisprudence. Moreover, I submit that the majority is sending an unfortunate message to the Appellate Term, even if it does so inadvertently, by reversing a decision in which that court gave preclusive effect to this Court's own prior determination in the prior action that the lease at issue in both this proceeding and the prior proceeding had been effectively terminated before it was assigned to RVR.
Before: Friedman, J.P., Acosta, Feinman, Gische, Clark, JJ.