Dental Mgt. & Dev., Inc. v Bronx-Lebanon Hosp. Ctr.

Dental Mgt. & Dev., Inc. v Bronx-Lebanon Hosp. Ctr. 2009 NY Slip Op 09528 [68 AD3d 621] December 22, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Dental Management & Development, Inc., Respondent,
v
Bronx-Lebanon Hospital Center, Appellant.

—[*1] Garfunkel, Wild & Travis, P.C., Great Neck (Roy W. Breitenbach of counsel), for appellant.

Borah, Goldstein, Altschuler, Schwartz & Nahins, P.C., New York (Paul N. Gruber of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered October 16, 2008, which granted plaintiff subtenant's motion for summary judgment, and order, same court and Justice, entered or about March 5, 2009, which denied defendant's motion to renew and, upon granting defendant's motion for reargument, adhered to its prior decision, unanimously affirmed, with costs.

Because the agreement between two dentists utilizing the basement premises did not result in a complete surrender of the demised premises from one to the other, or a grant of exclusive use to the purported sub-subtenant, the agreement constituted a license rather than an unauthorized sub-sublease (cf. Matter of Dodgertown Homeowners Assn. v City of New York, 235 AD2d 538, 539 [1997], lv denied 89 NY2d 809 [1997]). In regard to the contention that there was an illegal fee-splitting arrangement, we note that neither notice to cure raised this as a violation, nor is this a fee-splitting agreement in violation of Education Law § 6509-a. As to the waiting room, which was subdivided into two sections without visible demarcation, the use of the entire common space by plaintiff's dental patients, including defendant's portion of the undivided area, did not constitute a breach of the sublease between plaintiff and defendant.

We have considered defendant's remaining arguments and find them unavailing. Concur—Friedman, J.P., McGuire, Renwick, Richter and Manzanet-Daniels, JJ.