Eldora Realty Corp. v. Nicholson

This is an action by a landlord to compel a tenant to remove a television antenna from the exterior of a building and for damages. The answer consists of denials of the allegations of the complaint that plaintiff had demanded removal of the installation and that defendant had refused to remove it, and alleges that authority was given by an agent of plaintiff to place the television antenna where it was placed. Plaintiff has moved on affidavits to strike the denials of the answer as sham and for judgment on the pleadings and admissions and for an assessment of damages.

Although a triable issue, bearing on damages, may remain as to whether permission was given to defendant by an authorized agent of plaintiff for the installation of the television antenna, it is clear that such permission would amount only to a revocable license and that upon plaintiff’s demand defendant was obliged to remove the antenna. The denials in the answer are patently sham and there is no triable issue as to the rights of the parties after plaintiff demanded the removal of the antenna.

The order appealed from should be reversed, with $20 costs and disbursements to appellant, and judgment granting an injunction and directing an assessment of damages, if any, should be entered.

Peck, P. J., Dore, Callahan and Shientag, JJ., concur; Cohn, J., dissents and votes to affirm.

Order reversed, with $20 costs and disbursements to appellant, and judgment should be entered granting an injunction and directing an assessment of damages, if any. Settle order on notice.