Gindi v. Gruss , 511 N.Y.S.2d 15 ( 1987 )

Order and judgment, Supreme Court, New York County (Helen Freedman, J.), entered respectively on November 16, 1985 and February 4, 1986, which, in an action seeking specific performance of an alleged oral lease of store premises, granted defendants’ motion for summary judgment dismissing the complaint and canceling a notice of pendency, and which dismissed defendants’ counterclaims, modified, on the law, to delete that provision of the order and judgment appealed from that dismissed defendants’ counterclaims, and to substitute therefor a provision directing the severance and continuance of the counterclaims, and otherwise affirmed, without costs and without disbursements.

We agree with that part of the order and judgment appealed from, for the reasons set forth in Special Term’s opinion, that granted defendants’ motion for summary judgment dismissing the complaint and canceling a notice of pendency. However, Special Term erred in amending the proposed judgment to include a provision dismissing defendants’ counterclaims, apparently having failed to appreciate that plaintiff had not moved for such a dismissal, defendants had no opportunity to address those issues, and that a previous motion by the plaintiff for that relief had been denied by another Judge. Concur—Sandler, J. P., Sullivan, Ellerin and Wallach, JJ.