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Graubard Mollen, et. Al. v 600 Third Avenue Associates Published Decision (Dec. 5 1996)

By Jeffrey R. Metz


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234 A.D.2d 49, 650 N.Y.S.2d 207 (Cite as: 234 A.D.2d 49, 650 N.Y.S.2d 207)

Supreme Court, Appellate Division, First Department, New York. GRAUBARD MOLLEN HOROWITZ POMERANZ & SHAPIRO, Plaintiff—Appellant, v. 600 THIRD AVENUE ASSOCIATES, Defendant—Respondent.

Dec. 5, 1996.

Appeal was taken from orders of the Supreme Court, New York County, Wilk, J., directing tenant to pay landlord pendente lite 75% of the rent invoiced, to deposit the remainder into an escrow account, and to release to landlord $109,000 from the escrow account monthly. The Supreme Court, Appellate Division, held that the trial court properly exercised its discretion in modifying the condition upon which tenant was granted a Yellowstone injunction to require payment of partial use and occupancy.

Affirmed.

West Headnotes
111 Landlord and Tenant 233 0199
233 Landlord and Tenant 233IX Re-Entry and Recovery of Possession by Landlord 233k293 Summary Proceedings 233k299 k. Injunction against or stay of proceedings. Most Cited Cases Trial court properly exercised its discretion in modifying the condition upon which tenant was granted a Yellowstone injunction to require payment of partial use and occupancy; initial agreement that tenant claimed to be stipulation was never reduced to writing or “so ordered” by the court, and no payments were made to escrow account at that time.

121 Landlord and Tenant 233 C=33
233 Landlord and Tenant 23311 Leases and Agreements in General 233I1(A) Requisites and Validity 233k33 k. Modification. Most Cited Cases Trial court would have had power to modify any prior arrangement between landlord and tenant based upon showing of mistake where, in reaching alleged arrangement, it was initially assumed that the matter would be expeditiously determined in a few months in housing court, but instead it had dragged on for nearly three years.

**208 Scott E. Mollen, for Plaintiff—Appellant.

Jeffrey R. Metz, for Defendant—Respondent.

Before SULLIVAN, J.P., and ROSENBERGER, RUBIN, ROSS and MAZZARELLI, JJ.

MEMORANDUM DECISION. *49 Order, Supreme Court, New York County (Elliott Wilk, J.), entered May 9, 1996, which, inter alia, directed plaintiff to pay to defendant directly a sum equal to 75% of the rent invoiced for May 1996 and to deposit the remainder into the escrow account previously established by the parties; and order of the same court and Justice entered July 9, 1996, which, inter alia, directed that beginning June 5, 1996 and continuing pendente lite plaintiff pay to defendant directly a sum equal to 75% of the monthly invoiced rent and deposit the remaining 25% in the escrow account, and beginning June 1996 and continuing each successive calendar month pendente lite, there be released monthly to defendant from said escrow account the sum of $109,000, unanimously affirmed, with one bill of costs.
[1][2] The court properly exercised its discretion in modifying the condition upon which plaintiff was granted a Yellowstone injunction to
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