Curry v. 365 West 19th Street Owners Corp. ( 1998 )

—Order, Supreme Court, New York County (Carol Huff, J.), entered December 16, 1996, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

While we disagree with the IAS Court’s denial of summary judgment by reason of the “law of the case”, since there was no legal determination on the merits in the prior Yellowstone proceeding determinative of plaintiffs standing to maintain the present action respecting the validity of the parties’ lease and their rights thereunder (see, Wapnick v Seven Park Ave. Corp., 240 AD2d 245), summary judgment was nonetheless properly denied. A review of the record discloses triable issues respecting the validity of the subject lease and, accordingly, as to plaintiffs standing. Such issues include whether plaintiff diligently attempted to cure her default under the lease by seeking eviction of the residential subtenants and whether she subsequently cured the defect constituted by their occupancy by duly obtaining an amended certificate of occupancy. Concur — Lerner, P. J., Sullivan, Milonas, Ellerin and Andrias, JJ. .