In re the Estate of Fenner

Order, Surrogate’s Court, New York County, entered on December 27, 1974, on reargument and adhering to the original decision on an order entered June 17, 1974, which denied the appellant’s motion for summary judgment dismissing the amended claim, unanimously reversed, on the law, and the motion for summary judgment granted. Appellant shall recover of plaintiff-respondent $60 costs and disbursements of this appeal. The appeal from the order of June 17, 1974, is unanimously dismissed, without costs and without disbursements. This was originally a suit for rent for the remainder of the term of an unexpired lease for office space entered into by an attorney who died during the term of the lease. That claim was dismissed, 40th Assoc. v Fenner (42 AD2d 956). Thereafter, the landlord who had taken possession of the premises on the death of the attorney, made a claim in the Surrogate’s Court for the monthly rental based on a survivorship clause in the lease, which provided that if there should be a re-entry, the tenant would remain liable for all rent for the balance of the term to the extent not collected from a new tenant. However, a final judgment on the merits has already been rendered and the matter is res judicata. (See Wilkins v American Export Isbrandtsen Lines, 46 AD2d 244, 245-246; see, also, Wolf-Kahn Realty Corp. v Sussman, 240 App Div 422, affd without op 265 NY 572.) Concur—Markewich, J. P., Kupferman, Murphy, Tilzer and Nunez, JJ.