Health & Beauty Studios, Inc. v. Gray , 48 A.D.2d 632 ( 1975 )

Order, Supreme Court, New York County, entered on August 13, 1973, granting defendants’ motion for reconsideration of a motion for reargument of defendants’ motions to dismiss the complaint and, upon reargument, granting defendants’ motions to dismiss the complaint on the ground of res judicata, and the judgment of said court entered on August 22, 1973 unanimously reversed, on the law, the judgment vacated, the motions to dismiss the complaint denied and the complaint reinstated, with $60 costs and disbursements to appellant. Plaintiff was a tenant under a lease which gave it the right to sublet or assign with the written approval of the landlord, which was not to be unreasonably withheld. Plaintiff allegedly obtained a prospective subtenant at an increased annual rental. The complaint alleges a fraudulent conspiracy among the defendants whereby the owner improperly refused to consent to the subletting, and holdover proceedings were commenced against the plaintiff tenant, pursuant to which plaintiff was induced to agree to a stipulation of settlement consenting to final judgment of possession, and the owner then negotiated an independent lease with the prospective subtenant. It is contended that due to the fraud plaintiff was wrongly induced to surrender possession and lost its sublet rights. The defendants’ motion to dismiss was to the effect that the appellant was first required to vacate the judgment by moving to set aside the stipulation filed in the Civil Court, which settled the holdover proceedings, and defendants further contended that a collateral attack could not be made on the Civil Court judgment. However, this is an action for fraud and deceit, and, therefore, properly an independent action. (See Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435, 446.) Concur— Markewich, J. P., Kupferman, Murphy, Lupiano and Tilzer, JJ.