Daashuur Associates v. December Artists Apartment Corp. , 668 N.Y.S.2d 453 ( 1998 )

Order and judgment (one paper), Supreme Court, New York County (Emily Jane Goodman, J.), entered May 8, 1997, which, inter alia, denied plaintiffs’ cross-motion for summary judgment, granted defendant’s motion for summary judgment dismissing the complaint and for the relief sought in the second, third and fourth counterclaims, including that defendant have immediate possession of and a warrant of eviction for the subject premises, and use and occupancy in the amount of $123,087.91, unanimously affirmed, with costs. Appeals from an order of the same court and Justice, entered on or about March 21, 1997, and from a decision of the same court and Justice dated March 18, 1997, unanimously dismissed, without costs.

The identical argument now raised in support of plaintiffs’ claim that triable issues of fact exist precluding summary judgment has been considered by this Court in defendant’s previous appeal challenging the granting of a Yellowstone injunction, where we found, in dicta, that the commercial lease at issue “clearly prohibited, inter alia, the placement of awnings, projections or signs on any part of the outside of the building without the prior written consent of the landlord” (226 AD2d 114). We find no reason to depart from that statement on this appeal. Hence, no triable issues of fact exist that preclude the granting of summary judgment in defendant’s favor. We have considered plaintiffs’ remaining contentions and find them to be without merit.

Concur — Sullivan, J. P., Milonas, Mazzarelli and Andrias, JJ.