Henry Model & Co. v. Baer Marks & Upham

Order, Supreme Court, New York County (Francis N. Pecora, J.), entered October 2, 1990, which granted defendants’ motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint, unanimously affirmed, with costs. Order of the same court and Justice, entered September 19, 1990, which granted plaintiffs motion for reargument, and, upon reargument, adhered to the decision underlying the *140order entered on October 2, 1990, on the ground that there was no showing that the court "either misapprehended the relevant facts or misapplied a controlling principle of law,” is deemed to have denied the motion for reargument, and, so considered, the appeal therefrom is dismissed, without costs.

The present appeal is merely another attempt by plaintiff to circumvent prior determinations of both this court and the New York Court of Appeals specifically finding that it has no possessory interest in leasehold premises located at 198 Broadway, and therefore is not entitled to recover use and occupancy (Minister of Refm. Prot. Dutch Church of City of N. Y. v 198 Broadway, 88 AD2d 511, affd 59 NY2d 170; Modell & Co. v Minister of Refm. Prot. Dutch Church of City of N. Y, 68 NY2d 456). In view of these prior determinations, IAS properly dismissed the present action seeking monetary damages for breach of an escrow agreement. The record reveals that defendant Camera Barns ceased placing monthly rent into an interest-bearing escrow account, and that defendants Baer Marks & Upham and George H. Colin released the escrow funds to defendant Camera Barns only after the Court of Appeals determined, in June 1983, that plaintiff had no possessory interest in the leasehold and was not entitled to recover use and occupancy (68 NY2d, supra, at 459-460; 59 NY2d, supra, at 175-176). Thus, plaintiff’s claim to the escrow funds is without merit.

We have considered plaintiff’s other arguments and find them to be without merit. Concur—Milonas, J. P., Rosenberger, Kupferman, Ross and Asch, JJ.