ROTH SONS v. NATIONAL KINNEY CORPORATION, 44 N.Y.2d 912 (1978)

407 N.Y.S.2d 640, 379 N.E.2d 168

EMERY ROTH SONS, Appellant, v. NATIONAL KINNEY CORPORATION et al., Respondents, and RICHARD ROTH, SR., et al., Appellants.

Court of Appeals of the State of New York.Argued April 26, 1978
Decided June 8, 1978

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, MARTIN B. STECHER, J.

Page 913

Jill C. Lesser, Michael A. Lacher and Joseph Heller for appellants.

Colleen McMahon and Robert L. Laufer for respondents.

Page 914

MEMORANDUM.

The order of the Appellate Division should be modified to the extent of providing that the third counterclaim be dismissed and, except as so modified, affirmed, with costs to appealing defendants. The question certified is answered in the negative.

In its third counterclaim, defendant seeks damages for counsel fees and other expenses incurred in connection with reobtaining possession of the demised premises, putting such premises in good order and preparing them for rerental. However, by failing to assert these claims in the prior summary proceeding based on nonpayment of rent, defendant has impermissibly split a cause of action and is barred from asserting them as a counterclaim in this action (930 Fifth Corp. v King, 42 N.Y.2d 886, 887-888 Century Factors v New Plan Realty Corp., 41 N.Y.2d 1040, 1041 Columbia Corrugated Container v Skyway Container Corp., 37 A.D.2d 845, affd 32 N.Y.2d 818).

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.

Order modified, with costs to appealing defendants, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.