Optical Exchange of 35th Street, Inc. v. Hong

Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about May 8, 2001, which, inter alia, granted defendants’ motion for summary judgment dismissing the complaint and entitling defendants to recover upon their counterclaim for attorneys’ fees, unanimously modified, on the law, to declare in defendants’ favor that plaintiff tenant’s assignment of its lease with defendant owners was in violation of the lease provision governing subletting and assignment, and otherwise affirmed, without costs.

The motion court properly found that plaintiff tenant was in violation of its commercial lease with defendant owners by reason of its assignment of the lease in violation of the clause therein relating to subletting or assignment. Contrary to plaintiffs argument, the assignment at issue did not meet the lease criteria for dispensing with defendant landlords’ consent to assignment. Such consent to assignment admittedly not having been obtained by plaintiff, plaintiff’s breach of the lease was plainly established. While the motion court correctly found in defendants’ favor, the proper disposition of plaintiffs cause of action seeking declaratory relief was not dismissal but a declaration in defendants’ favor (see, Lanza v Wagner, 11 NY2d 317, 334).

We have considered plaintiffs various remaining arguments, including its challenge to the award of attorneys’ fees on defendants’ counterclaim, and find them to be without unavailing. Concur — Tom, J.P., Andrias, Saxe, Wallach and Rubin, JJ.