Itel Data Processing Corp. v. Dominick International Corp.

In an action on a commercial lease, the defendant tenant appeals from so much of an order of the Supreme Court, Westchester County, dated June 11, 1976, as (1) denied its motion to dismiss plaintiff-respondent’s second cause of action and (2) granted the branches of plaintiff’s cross motion which sought (a) dismissal of defendant’s third affirmative defense and third, fourth and fifth counterclaims and (b) leave to serve a supplemental complaint. Order modified, on the law, by deleting the first decretal paragraph thereof and substituting therefor a provision granting defendant’s motion to dismiss plaintiff’s second cause of action. As so *577modified, order affirmed insofar as appealed from, without costs or disbursements. Plaintiff’s time to serve a supplemental complaint is extended until 20 days after entry of the order to be made hereon. An examination of the lease reveals that damages are to be paid by the tenant as they become due. Therefore, plaintiff cannot bring a cause of action for additional rent through the end of the term of the lease. We have considered defendant-appellant’s other arguments and find them to be without merit. Cohalan, J. P., Damiani, Rabin and Titone, JJ., concur.