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LABINER v. JEROME FLORIST, INC.

Index No. 155718/14. Appeal No. 12718. Case No. 2019-4387.

189 A.D.3d 624 (2020)

139 N.Y.S.3d 145

2020 NY Slip Op 07708

Bartley Labiner, Appellant-Respondent, v. Jerome Florist, Inc., Respondent, and 50 East 96th Street LLC, Respondent-Appellant.

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

Decided December 22, 2020.

Attorney(s) appearing for the Case

Edelman, Krasin & Jaye, PLLC, Westbury ( Kara M. Rosen of counsel), for appellant-respondent.

Law Offices of Tromello & Fishman, Tarrytown ( Silvia C. Souto of counsel), for respondent.

Kennedys CMK, LLP, New York ( David Placke of counsel), for respondent-appellant.

Concur—Acosta, P.J., Oing, Scarpulla, Mendez, JJ.

The motion court's determination that 50 East was entitled to summary judgment on the ground that it is an out-of-possession landlord is no longer sound in light of the Court of Appeals' decision in Xiang Fu He v Troon Mgt., Inc. (34 N.Y.3d 167, 172-174 [2019] [decided after the motion court's decision]; see also LaRosa v Corner Locations, II, L.P., 169 A.D.3d 512, 513 [1st Dept 2019]). Notwithstanding any lease provisions...

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