Appellate Division of the Supreme Court of New York, 1990

Berkshire Nursing Center, Inc. v. Len Realty Co.

Appellate Division of the Supreme Court of New York · Decided December 10, 1990

168 A.D.2d 475; 562 N.Y.S.2d 716; 1990 N.Y. App. Div. LEXIS 15431

Cases that cite this one

8 later published cases cite this decision.

Feldstein v. New York City Department of Consumer Affairs (District Court, E.D. New York 1992)
Siddiqui v. Smith (Appellate Division of the Supreme Court of New York 2022)
Egbert Square Realty, LLC v. 112-114 Corp. (Appellate Division of the Supreme Court of New York 2012)
Stuart Realty Co. v. Rye Country Store, Inc. (Appellate Division of the Supreme Court of New York 2002)
Towne v. Asadourian (Appellate Division of the Supreme Court of New York 2000)
Gallo v. Teplitz Tri-State Recycling, Inc. (Appellate Division of the Supreme Court of New York 1998)
Ruben v. American & Foreign Insurance (Appellate Division of the Supreme Court of New York 1992)
Begelman v. Begelman (Appellate Division of the Supreme Court of New York 1991)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action to recover capital cost expenditures pursuant to a lease, the defendant appeals from *476so much of an order of the Supreme Court, Nassau County (Morrison, J.), dated November 28, 1988, as denied its cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The parties entered into a lease which allegedly obligated the defendant landlord to reimburse the plaintiff tenant for required "capital costs” the plaintiff made. Contending that the plaintiff failed to set forth any facts demonstrating that its expenditures were required "capital costs”, the defendant argues it should have been granted summary judgment. We disagree.

The plaintiff submitted to the defendant a detailed listing specifying the nature of each expense, the amount, the date incurred, the vendor, and the corresponding check number. Considering the ambiguous meaning of the term "capital costs”, the expenditures alleged appear by their descriptions to be sufficiently necessary to raise a question as to whether they were the type for which the plaintiff was entitled to be reimbursed (see generally, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065).

While we affirm the order insofar as appealed from, we note that so much of the court’s decision as indicated that a prior action had collateral estoppel effect was erroneous. Because no order or final judgment was ever entered in the prior action, the doctrine of collateral estoppel is inapplicable (see, Dunleavy v First Am. Tit. Ins. Co., 117 AD2d 952; Ott v Barash, 109 AD2d 254; Peterson v Forkey, 50 AD2d 774). We also reject the defendant’s claim that the plaintiff improperly split its cause of action (see, Matter of Reilly v Reid, 45 NY2d 24, 27-31; Lewyt-Patchogue Co. v Cantor, 82 AD2d 911; Brown v Lockwood, 76 AD2d 721, 735-738; Stoner v Culligan, Inc., 32 AD2d 170).

In light of these findings, we find it unnecessary to address the plaintiffs other contention. Lawrence, J. P., Sullivan, Rosenblatt and Miller, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.