Franklin Associates v. GSL Enterprises, Inc. (248 A.D.2d 251, 1998)

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered March 5, 1997, which, inter alia, granted plaintiffs motion for a ruling that a claim for unpaid rent that defendant intended to submit to the Special Referee is unenforceable, denied defendant’s cross motion for summary judgment on that claim, and vacated prior orders of reference, unanimously modified, on the law and the facts, to reinstate the reference with respect to plaintiffs cause of action for an accounting, and otherwise affirmed, without costs.

The deferred rent that defendant is seeking to collect clearly did not, under the parties’ second lease modification, become due until September 1, 1992, and is therefore uncollectible, it being law of the case that plaintiff “is not responsible for any obligations under the lease incurred after September 6, 1991” (213 AD2d 313). Indeed, defendant’s answer never pleaded that this rent accrued before the surrender of the lease or otherwise indicated that it was an item defendant was seeking to recover. However, it was error to cancel the reference since plaintiffs second cause of action for an accounting of various tax payments it was compelled to deposit into escrow remains unresolved.

Concur — Lerner, P. J., Sullivan, Rosenberger, Nardelli and Andrias, JJ.