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Fay's Inc. v. Park Centre Development, Inc.

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 19, 1996
226 A.D.2d 1067 (N.Y. App. Div. 1996)

Opinion

April 19, 1996

Appeal from the Supreme Court, Onondaga County, Nicholson, J.

Present — Pine, J.P., Lawton, Wesley, Balio and Davis, JJ.


Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court did not err in granting plaintiff a Yellowstone injunction ( see, First Natl. Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630, rearg denied 22 N.Y.2d 827; see also, Waldbaum, Inc. v. Fifth Ave. of Long Is. Realty Assocs., 85 N.Y.2d 600; 225 E. 36th St. Garage Corp. v. 221 E. 36th Owners Corp., 211 A.D.2d 420, 421; Matter of Langfur, 198 A.D.2d 355, 356).

The court erred, however, in failing to grant defendant's cross motion for a change of venue. In addition to seeking a judgment declaring the rights of the parties under the lease, the complaint also seeks a judgment enjoining defendant from terminating the lease or otherwise taking action to evict plaintiff from the premises. The judgment sought "would affect * * * the possession, use or enjoyment of" (CPLR 507) the subject real property by plaintiff and, thus, is a "local" action that must be brought in Cattaraugus County, the situs county ( see, Spellman Food Servs. v. Patrick, 90 A.D.2d 791; cf., Port Bay Assocs. v. Soundview Shopping Ctr., 197 A.D.2d 848). Therefore, we modify the order by granting defendant's cross motion for a change of venue from Onondaga County to Cattaraugus County.


Summaries of

Fay's Inc. v. Park Centre Development, Inc.

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 19, 1996
226 A.D.2d 1067 (N.Y. App. Div. 1996)
Case details for

Fay's Inc. v. Park Centre Development, Inc.

Case Details

Full title:FAY'S INCORPORATED, Formerly Known as FAY'S DRUG COMPANY, INC.…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Apr 19, 1996

Citations

226 A.D.2d 1067 (N.Y. App. Div. 1996)
642 N.Y.S.2d 103

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