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5757 Associates v. Blanford

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 28, 2010

5757 ASSOCIATES, PLAINTIFF-APPELLANT,
v.
WILLIAM BLANFORD, DEFENDANT, YOHANNES SYOUM, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered May 6, 2009, which denied plaintiff's motion for summary judgment and dismissed the complaint as against defendant Syoum, 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., Sweeny, Moskowitz, Manzanet-Daniels, RomÁn, JJ.

602178/08

Even though plaintiff had moved for summary judgment, the motion court had authority to grant summary judgment to the nonmoving defendant (CPLR 3212[b]). The court properly dismissed the complaint on undisputed facts. The lease between the parties required plaintiff to give notice of a default to Syoum, the assignor of the lease. Plaintiff's failure to give Syoum such notice constituted a breach of its obligations under the lease (see Poole v Pellati, 251 AD2d 480, 481-482 [1998], lv dismissed 92 NY2d 1002 [1998]).

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

20100128

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