97 A.D.2d 606 | N.Y. App. Div. | 1983
Appeal from an order of the Supreme Court at Special Term (Cerrito, J.), entered July 26, 1982 in Schenectady County, which granted a motion by third-party defendants to dismiss the amended third-party complaint. The issue raised on this appeal is whether a cause of action is stated by a third-party complaint seeking recovery from a commercial landlord for any damages that a tenant may have to pay its cotenant arising out of temporary restraining orders obtained by the tenant in a prior action against the landlord and the cotenant, based upon an alleged breach of a clause in the tenant’s lease prohibiting the landlord from leasing other space to the tenant’s competitors. Special Term found no cause of action and dismissed the third-party complaint. We affirm. When plaintiff opened his store in Pyramid Mall, Glens Falls, where he sold athletic footwear, athletic apparel and related accessories, the third-party plaintiffs, operators of a sporting goods store in the mall, commenced an action against plaintiff and the landlord seeking damages and an injunction upon the theory that plaintiff’s lease was made in violation of a provision in the third-party plaintiffs’ lease which barred the landlord from leasing space in the mall to any other tenant whose principal line of business is the sale of sporting goods and accessories. The third-party plaintiffs obtained temporary restraining orders, but ultimately these orders were vacated and all claims against plaintiff were dismissed (see Fox v Congel, 75 AD2d 681). Plaintiff thereafter commenced the instant action against the third-party