SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 2, 1969
TEDDY'S DRIVE-IN, INC., RESPONDENT,
RICHARD L. MILLER, AS EXECUTOR OF HARRY L. MILLER, DECEASED, ET AL., APPELLANTS
In an action for a judgment declaring, inter alia, that plaintiff has the right to remove its diner structure from the real property of which plaintiff is the lessee, in which action defendants counterclaimed for ejectment on the basis of plaintiff's alleged breach of the lease, defendants appeal from a judgment of the Supreme Court, Queens County, dated July 28, 1967, which, inter alia, (1) decreed that plaintiff (a) had not breached its lease by failing to keep the diner open and (b) has the right to remove the diner; and (2) dismissed the counterclaim.
Beldock, P. J., Christ, Munder and Martuscello, JJ., concur; Rabin, J., dissents and votes to affirm the judgment.
Judgment modified, on the law and the facts, by (1) deleting therefrom so much of decretal paragraph "2" as declared that plaintiff has the right to remove the diner and (2) adding a decretal paragraph that plaintiff may not use the demised premises as a parking lot except in connection with a diner conducted thereon. As so modified, judgment affirmed, without costs. We are of the opinion that the language of the lease clearly provides that the diner may not be removed until the termination of the lease and that the premises may be used for parking only for a business conducted on the premises and not for a business conducted on adjoining premises.
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