Banque Nationale de Paris v. 1567 Broadway Ownership Associates

—Order, Supreme Court, New York County (Alfred Toker, J.), entered September 17, 1993, which in an action to foreclose a mortgage, granted the motion by the court-appointed receiver to compel defendant-appellant to attorn to him and pay to his managing agent all rents and other charges due and owing under the lease between defendants 1567 Broadway Owner [252] ship Associates and Shark Leasing Corp., unanimously affirmed, with costs. The IAS Court correctly determined that appellant’s "sublease” with Shark Leasing Corp., under which the latter demised its entire interest in the entire premises for the entire time remaining on the prime lease, constituted an assignment (Mann Theatres Corp. v Mid-Island Shopping Plaza Co., 94 AD2d 466, 472, affd 62 NY2d 930), notwithstanding a contingent right of re-entry (Nedick’s Stores v T.S.N.Y. Realty Corp., 156 AD2d 123, 124). In any event, no provision in the prime lease authorizes a setoff for the moneys allegedly expended to renovate and improve the premises as against the $100,000 minimum monthly rent specified in the prime lease. In fact, it expressly prohibits the same. Whatever claims appellant may have against Shark under the sublease can be pursued in a separate legal action (see, Stewart v Long Is. R. R. Co., 102 NY 601). We have considered appellant’s other contentions and find them to be without merit. Concur — Sullivan, J. P., Carro, Ellerin, Wallach and Nardelli, JJ.