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Sutton Madison, Inc. v. 27 East 65th Street Owners Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 10, 2009

SUTTON MADISON, INC., PLAINTIFF-APPELLANT,
v.
27 EAST 65TH STREET OWNERS CORP., DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered September 10, 2008, which granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs.

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.

Mazzarelli, J.P., Andrias, Saxe, Catterson, Acosta, JJ.

107183/08

Plaintiff's attempt to amend its complaint without leave of court failed to comply with CPLR 3025(a) and in any event was without merit. Defendant agreed to allow access for adjustments to the HVAC unit and added plaintiff and the ground lessor as additional named insureds on its insurance policies. Thus, the declaratory relief plaintiff sought "[would] become effective only upon the occurrence of a future event that may or may not come to pass" (Matter of Gates v Hernandez, 26 AD3d 288, 289 [2006]). Plaintiff's argument that continuing disputes are not hypothetical is without support in the record. In any event, plaintiff has the adequate alternate remedy of an action for breach of contract (see Apple Records v Capitol Records, 137 AD2d 50, 54 [1988]).

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

20091210

© 1992-2009 VersusLaw Inc.



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