BKS Associates v. Kenny

In an action, inter alia, to recover damages for breach of a lease, the defendants appeal from an order of the Supreme Court, Putnam County (Dickinson, J.), dated May 18, 1988, which granted the plaintiffs’ motion for reargument of a motion for partial summary judgment on the issue of fault, and, upon reargument, granted the motion for partial summary judgment.

Ordered that the order is reversed, on the law, with costs, and the plaintiffs’ motion for reargument is denied.

The plaintiff John W. Stein Special Nominee Corp. (hereinafter Stein) entered into a lease with defendants Thomas W. Kenny and T.W.K. Service Station, Inc., pursuant to which Stein became the lessor of certain property for 99 years. It is alleged in the plaintiffs’ complaint that Stein’s interest in the property has since been assigned to the coplaintiff BKS Associates, but this allegation was not admitted in the defendants’ answer. Given the absence from the record of any competent evidence in admissible form that this assignment in fact occurred, partial summary judgment is inappropriate. Bracken, J. P., Eiber, Spatt and Rosenblatt, JJ., concur.