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Martek Investors, Inc. v. Morris Smith Carting Co.

99 A.D.2d 668 Court N.Y. App. Div. Decision date 1984-01-27 English

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p. 668
Martek Investors, Inc., Formerly Known as Star Supermarkets, Inc., Respondent-Appellant, v Morris Smith Carting Company, Inc., Appellant-Respondent. (Action No. 1.) Morris Smith Carting Company, Inc., Appellant-Respondent, v Star Supermarkets, Inc., Now Known as Martek Investors, Inc., Respondent-Appellant. (Action No. 2.)

Order unanimously affirmed, without costs. Memorandum: There are factual questions pertaining to whether the business of the proposed assignee was such that under paragraph 10 of the lease the lessor could properly withhold its consent to the assignment. Summary judgment was, therefore, properly denied to each party (CPLR 3212, subd [b]). The lessee’s notice of termination in the letter of December 6,1982 (assuming the lessee is ultimately found to have the right to terminate under paragraph 10) was, we hold, timely served. The lessor has demonstrated no right to a preliminary injunction and that motion was properly denied (see Niagara Recycling v Town of Niagara, 83 AD2d 316 , 324). (Appeals from order of Supreme Court, Monroe County, Pine, J. — summary judgment.) Present — Dillon, P. J., Hancock, Jr., Green, O’Donnell and Schnepp, JJ.

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