Summary
rejecting a party's argument that notice had been sent to the wrong address where actual notice was received and the recipient did not complain about notice until more than six months after a trial had begun
Summary of this case from In re 49 Bleecker Inc.Opinion
Decided November 27, 1984
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Marquette L. Floyd, J.
Paul Senzer and John P. Lomenzo for appellant.
M. William Munno for respondent.
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 N.Y.2d 930, affg 94 A.D.2d 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 N.Y.2d 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 N.Y.CRR 500.4), order affirmed, with costs, in a memorandum.