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313 W. 57 REST. CORP. v. 313 W. 57TH ASSOCS.

186 A.D.2d 466 (1992)

313 West 57 Rest. Corp. et al., Respondents, v. 313 West 57th Associates, Appellant. Panagiotis Fotiadis, Counterclaim Defendant-Respondent-Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

October 22, 1992

Plaintiffs failed to pay use and occupancy (RPAPL 749 [3]), and accordingly, defendant is entitled to an order of possession (see, Calvert v Le Tam Realty Corp., 118 A.D.2d 426). Counterclaim defendant is not physically in possession but claims such right pursuant to a Surrender Agreement from plaintiff and the court properly ordered counterclaim defendant to post an...

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