Duane Thomas LLC v. Wallin

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered December 5, 2003, which, in an action for ejectment, inter alia, granted plaintiffs motion for use and occupancy and dismissal of defendant’s second counterclaim, and denied defendant’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Factual issues as to who breached the parties’ 2001 agreement settling the prior holdover proceeding preclude dismissal of plaintiffs claim for ejectment based on defendant’s breach of that agreement (see Aryeh v 61 E. 86 Owners Corp., 249 AD2d…