Opinion
March 19, 1998
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
The deferred rent that defendant is seeking to collect clearly did not, under the parties' second lease modification, become due until September 1, 1992, and is therefore uncollectible, it being law of the case that plaintiff "is not responsible for any obligations under the lease incurred after September 6, 1991" ( 213 A.D.2d 313). Indeed, defendant's answer never pleaded that this rent accrued before the surrender of the lease or otherwise indicated that it was an item defendant was seeking to recover; However, it was error to cancel the reference since plaintiffs second cause of action for an accounting of various tax payments it was compelled to deposit into escrow remains unresolved.
Concur — Lerner, P. J., Sullivan, Rosenberger, Nardelli and Andrias, JJ.