Goldstein v 12 Broadway Realty LLC

Goldstein v 12 Broadway Realty LLC 2011 NY Slip Op 08465 Decided on November 22, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 22, 2011
Tom, J.P., Saxe, Sweeny, Richter, Manzanet-Daniels, JJ.
6111 650476/10

[*1]Lawrence A. Goldstein, et al., Plaintiffs-Respondents,

v

12 Broadway Realty LLC, Defendant-Appellant.




Kramer Levin Naftalis & Frankel LLP, New York (Ronald S.
Greenberg of counsel), for appellant.
Robinson Brog Leinwand Greene Genovese & Gluck, P.C.,
New York (David C. Burger of counsel), for respondents.

Amended order and judgment (one paper), Supreme Court, New York County (Joan A. Madden, J.), entered June 27, 2011, which, to the extent appealed from as limited by the briefs, resolved the lessor plaintiffs' first claim and defendant lessee's counterclaim, for declaratory relief as to the interpretation of the subject lease, in plaintiffs' favor, and declared that, among other things, the appraisers shall not consider the language of section 9.1 of the lease regarding the use of the land as a "modern apartment house with not less than nine stories," and that the Real Estate Board of New York (REBNY) shall be substituted for the Chamber of Commerce of the State of New York as the entity designated to appoint a third appraiser, in the event a third appraiser is necessary in accordance with section 19.4 of the lease, unanimously affirmed, without costs.

The motion court properly interpreted the disputed sections of the lease as requiring the appraisers to value the land as vacant and unimproved, with no restrictions affecting its use (see New York Overnight Partners v Gordon, 88 NY2d 716, 721-722 [1996]). Reversal is not required on res judicata grounds. Indeed, neither the so-ordered stipulation in the first action nor the court's prior orders construed the disputed terms of the lease. Although the court had previously determined that the issue of the selection of a third appraiser was premature, it properly searched the record and resolved the issue sua sponte in this case in order to avoid further litigation and delay (see CPLR 3212[b]). Because the record shows that the designated entity under the lease no longer performs the service of [*2]
selecting neutral appraisers, the motion court providently exercised its discretion in declaring that REBNY should select a third appraiser, in the event one is necessary.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 22, 2011

CLERK