Opinion
February 1, 1971
Order, Supreme Court, New York County, entered on May 1, 1970, reversed on the law, the motion granted, the complaint dismissed and the action severed as to defendant-appellant. The appellant shall recover of respondent $50 costs and disbursements of this appeal. Paragraph 63(b) of the lease as set forth in the complaint herein excludes from the restrictive covenant "noncommercial art displays and/or shows (including sales therefrom) in any of the common areas of the Shopping Center." Since it is not alleged in the complaint that the art show, which in fact has been held outdoors, was not within the ambit of the exclusionary clause, the complaint must be dismissed.
Concur — Markewich, J.P., Nunez, Steuer and Tilzer, JJ.