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Cooper v. Number 535 Park Avenue

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 4, 2010

JEFFREY COOPER, O.D., PLAINTIFF-APPELLANT,
v.
NUMBER 535 PARK AVENUE, DEFENDANT-RESPONDENT.

Order and judgment (one paper), Supreme Court, New York County (Michael D. Stallman, J.), entered July 17, 2009, granting defendant's motion to dismiss the complaint pursuant to CPLR 3211 and declaring that plaintiff did not validly exercise an option to renew the subject lease, unanimously reversed, on the law, with costs, the motion denied, the declaration vacated, and the matter remanded for service of an answer and for further proceedings. Appeal from order, same court and Justice, entered May 5, 2009, upon a stipulation dated April 23, 2009, which denied plaintiff's motion to consolidate this action with a holdover proceeding in Civil Court, unanimously dismissed, without costs, as taken from a non-appealable paper.

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.

Andrias, J.P., Friedman, Catterson, McGuire, RomÁn, JJ.

100708/09

We need not decide whether the documentary evidence conclusively establishes that plaintiff failed to renew the lease in compliance with its terms (see American Realty Co. v 64 B Venture, 176 AD2d 226, 227 [1991], lv denied 79 NY2d 756 [1992]). Plaintiff's allegations that any deficiencies in the notice were inadvertent and that he has made significant improvements in the premises and accumulated 30 years of goodwill in his optometry practice are sufficient to warrant consideration of equitable relief to avoid a forfeiture (see J. N. A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392 [1977]; see also Blumenthal v 162 E. 80th Tenants, 88 AD2d 871 [1982]).

No appeal lies from an order entered on consent (Matter of Tyshawn Jaraind C., 33 AD2d 488 [2006]). Plaintiff's remedy is a motion to set aside the stipulation (Hopkins v Hopkins, 97 AD2d 457 [1983]).

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

20100504

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