MacArthur Props., LLC v 305 E. 72 Rest. LLC

[*1] MacArthur Props., LLC v 305 E. 72 Rest. LLC 2010 NY Slip Op 50741(U) [27 Misc 3d 134(A)] Decided on April 28, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 28, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, J.
570048/08

MacArthur Properties, LLC, Petitioner-Landlord-

against

305 E. 72 Rest. LLC, Respondent-Tenant-Appellant.

Tenant appeals from an order of the Civil Court of

the City of New York, New York County (Anil C. Singh, J.) entered November 26, 2008, which denied its motion for summary judgment dismissing the petition and granted landlord's cross motion for partial summary judgment as to liability in a nonpayment summary proceeding.
Per Curiam.

Order (Anil C. Singh, J.), entered November 26, 2008, affirmed, with $10 costs.

Civil Court properly awarded landlord partial summary judgment on the nonpayment petition on the issue of the commercial tenant's liability for rent. The notations appearing on the check stubs accompanying the aggregate rent payments made on behalf of the tenant and two related, but distinct storefront lessees on checks drawn by a non-party entity did not constitute restrictive endorsements (see Pincus-Litman Co. v Canon U.S.A., 98 AD2d 681 [1983]; West Seventy-Ninth St. Assoc. v Lemi, Inc., 144 Misc 2d 216 [1989]) or otherwise limit the landlord's right to allocate the combined, lump sum payments as it saw fit (see Comparato v Wegman,272 AD2d 907 [2000]; Mint Factors v Castelle, 127 AD2d 636 [1987]), as it did for several years without objection by tenant. Tenant's assertion that landlord acted in a commercially unreasonable manner in its method of allocating the rent payments is without evidentiary support in the record.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: April 28, 2010