Opinion
July 20, 1998
Appeal from the Supreme Court, Nassau County (Murphy, J.).
Ordered that the appeal by the defendant E. Van Vlahakis is dismissed, as that defendant is not aggrieved by the portion of the order appealed from ( see, CPLR 5511); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the respondent is awarded one bill of costs.
The plaintiff met his evidentiary burden of establishing, prima facie, his entitlement to summary judgment as a matter of law by producing sufficient evidence establishing that the subject lease was assigned to and assumed by the defendant Venus Laboratories, Inc. (hereinafter Venus) ( see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). From May 1988 through at least February 1989, Venus took possession of the premises and, during that period, paid the rent, utilities, taxes, water and sewer charges, and insurance. These actions by Venus, in addition to its express agreement to assume performance of the obligations in the lease, placed Venus in the same position as the original tenants, making it liable from the time of the assignment until the end of the term for breaches of any covenants in the lease by the tenants ( see, Mann v. Munch Brewery, 225 N.Y. 189, 196). Venus has not met its evidentiary burden of presenting proof in admissible form that there is a material question of fact requiring a trial.
Further, Venus is estopped from asserting the defense of release because the stipulation signed by the plaintiff discontinuing the action against it expressly states "without prejudice", and this was confirmed in open court by the plaintiff's attorney without objection by defense counsel ( see, Kimco of N. Y. v. Devon, 163 A.D.2d 573, 576).
Venus's remaining contentions are without merit.
Miller, J. P., Sullivan, Friedmann and McGinity, JJ., concur.