Metropolitan Transportation Authority v. Cosmopolitan Aviation Corp.

Nov 27, 1984
Versions:64 N.Y.2d 623
474 N.E.2d 245
485 N.Y.S.2d 37
1984 N.Y. LEXIS 4955

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Whether Cosmopolitan waived any defect in service of the notice of default under the lease by accepting the notice without objection and proceeding well into the trial before raising any claim of a defect (see Mann Theatres Corp. v Mid-Island Shopping Plaza Co., 62 NY2d 930, affg 94 AD2d 466, 474; Matter of D’Agostino v Bernabel, 269 App Div 853) is a factual question beyond this court’s power of review. So also was the Trial Judge’s denial to Cosmopolitan of a continuance, it being clear from its failure to make any offer of proof that the denial was not an abuse of discretion as a matter of law (see Patron v Patron, 40 NY2d 582).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.