Majority
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court did not err in granting plaintiff a Yellowstone injunction (see, First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630 , rearg denied 22 NY2d 827 ; see also, Waldbaum, Inc. v Fifth Ave. of
The court erred, however, in failing to grant defendant’s cross motion for a change of venue. In addition to seeking a judgment declaring the rights of the parties under the lease, the complaint also seeks a judgment enjoining defendant from terminating the lease or otherwise taking action to evict plaintiff from the premises. The judgment sought "would affect * * * the possession, use or enjoyment of’ (CPLR 507) the subject real property by plaintiff and, thus, is a "local” action that must be brought in Cattaraugus County, the situs county (see, Spellman Food Servs. v Patrick, 90 AD2d 791 ; cf., Port Bay Assocs. v Soundview Shopping Ctr., 197 AD2d 848 ). Therefore, we modify the order by granting defendant’s cross motion for a change of venue from Onondaga County to Cattaraugus County. (Appeal from Order of Supreme Court, Onondaga County, Nicholson, J.—Change of Venue.) Present—Pine, J. P., Lawton, Wesley, Balio and Davis, JJ.
Cases cited
- First National Stores, Inc. v. Yellowstone Shopping Center, Inc. 21 NY2d 630 p. 1067
- Waldbaum, Inc. v. Fifth Avenue of Long Island Realty Associates 85 NY2d 600 p. 1068
- 225 East 36th Street Garage Corp. v. 221 East 36th Owners Corp. 211 AD2d 420 at 421 p. 1068
- In re the Estate of Langfur 198 AD2d 355 at 356 p. 1068
- Spellman Food Services, Inc. v. Partrick 90 AD2d 791 p. 1068