New York Physicians LLP v Ironwood Realty Corp.

New York Physicians LLP v Ironwood Realty Corp. 2013 NY Slip Op 00688 Decided on February 5, 2013 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 February 5, 2013
Tom, J.P., Mazzarelli, Abdus-Salaam, Feinman, JJ.
8762N 653134/11

[*1]New York Physicians LLP, Plaintiff-Appellant,

v

Ironwood Realty Corporation, Defendant-Respondent.




Akerman Senterfitt LLP, New York (Scott M. Kessler of
counsel), for appellant.
Goldberg Weprin Finkel Goldstein LLP, New York (Kevin J.
Nash of counsel), for respondent.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered December 21, 2011, which ordered plaintiff, pending arbitration, to pay the base rent that had been in effect during the first renewal term, plus escalation and real estate taxes, unanimously affirmed, with costs.

The parties' lease states that the fair market rent for the second renewal term shall be determined by arbitration if the parties cannot agree. The parties could not agree on fair market rent, and plaintiff tenant commenced this action seeking, inter alia, a Yellowstone injunction and a declaration that it is not in default of the lease. Upon staying the action pending arbitration, the motion court appropriately ordered plaintiff to pay the base rent that was in effect during the previous lease term plus escalation and real estate taxes (see Andejo Corp. v South St. Seaport Ltd. Partnership., 35 AD3d 174 [1st Dept
2006]). Should plaintiff prevail in the arbitration, defendant shall be required to refund or offset any overcharge.

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

ENTERED: FEBRUARY 5, 2013

CLERK