MATTER OF METRO. TRANSP. AUTH. v. Cosmopolitan Aviation Corp.

64 N.Y.2d 623 (1984)

In the Matter of Metropolitan Transportation Authority, Respondent, v. Cosmopolitan Aviation Corporation, Appellant.

Court of Appeals of the State of New York.

Decided November 27, 1984.

Paul Senzer and John P. Lomenzo for appellant.

M. William Munno for respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.

*625MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Whether Cosmopolitan waived any defect in service of the notice of default under the lease by accepting the notice without objection and proceeding well into the trial before raising any claim of a defect (see Mann Theatres Corp. v Mid-Island Shopping Plaza Co., 62 N.Y.2d 930, affg 94 AD2d 466, 474; Matter of D'Agostino v Bernabel, 269 App Div 853) is a factual question beyond this court's power of review. So also was the Trial Judge's denial to Cosmopolitan of a continuance, it being clear from its failure to make any offer of proof that the denial was not an abuse of discretion as a matter of law (see Patron v Patron, 40 N.Y.2d 582).

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.