770-8th Avenue Corp. v. Propper , 271 A.D.2d 958 ( 1947 )

Appeal from so much of an order of the Supreme Court at Special Term, entered September 11, 1946, in New York County, as denied a motion by defendant for a dismissal of the first cause of action set forth in the complaint.

Per Curiam.

Defendant appeals irom so much of an order of Special Term as denied defendant’s motion to dismiss plaintiff’s first cause of action of the complaint under rule 106 of the Rules of Civil Practice. .The order appealed from dismissed the second cause of action but plaintiff does not appeal.

The first cause of action alleges that a third party, not a party to the litigation, the Major Management Corporation, “as landlord” leased to defendant as tenant the store in question. The complaint alleges that plaintiff is the owner in fee of the premises but there is no allegation that plaintiff has succeeded to the rights of the lessor of the store. The pleading accordingly negatives the conclusory allegation that plaintiff as owner in fee is entitled to immediate possession and is insufficient and should he dismissed.

If plaintiff in an amended complaint sets forth facts showing that it has the rights of the lessor, plaintiff should also allege facts showing compliance with the Business Rent Law. (L. 1945, eh. 314, as amd.)

The order, so far as appealed from, should be reversed, with $20 costs and disbursements to the appellant, and the complaint dismissed, with leave to the plaintiff to serve an amended complaint within ten days after service of order with notice of entry, on payment of said costs.

Martin, P. J., Glennon, Dore, Callahan and Peck, JJ., concur.

Order, so far as appealed from, unanimously reversed, with $20 costs and disbursements to the appellant, and the complaint dismissed, with leave to the plaintiff to serve an amended complaint within ten days after service of the order, with notice of entry thereof, on payment of said costs.