173 A.D.2d 604 | N.Y. App. Div. | 1991
In two actions, inter alia, for judgments declaring the parties’ respective rights under a lease, the tenant Top-All Varieties, Inc., appeals from so much of an order of the Supreme Court, Westchester County (Gurahian, J.), entered September 21, 1989, as granted that branch of a motion by Raj Development Co. and Richard Albert, the defendants in Action Number 1, for summary judgment dismissing the fourth and fifth causes of action in Action Number 1, and for leave to Richard Albert to discontinue Action Number 2, and denied its cross motion to consolidate Action Number 1 and Action Number 2.
Ordered that the order is affirmed insofar as appealed from, with costs.
We also find that the court did not err in dismissing the tenant’s fifth cause of action seeking an accounting concerning some alleged overcharged "common area” expenses. A fiduciary relationship between the parties is necessary in order to obtain an accounting (see, Mendelson v Feinman, 143 AD2d 76). The tenant has not established a fiduciary relationship between the parties justifying such a remedy (see, Keating v Weinberger, 160 AD2d 675; NOPA Realty Corp. v Central Caterers, 91 AD2d 991).
We have reviewed the tenant’s remaining contentions and find them to be without merit. Kunzeman, J. P., Balletta, Miller and O’Brien, JJ., concur.