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Ehrenworth v Kaufelt (2005 NY Slip Op 25147)

Supreme Court, Appellate Term, First Department, April 19, 2005
APPEARANCES OF COUNSEL
Steven W. Smollens, New York City, and Robert S. Michaels, P.C., New York City, for appellants. Ginsburg & Misk, Queens Village (Hal R. Ginsburg of counsel), for respondent.
{**8 Misc 3d at 11} OPINION OF THE COURT
Per Curiam.
Judgment entered September 17, 2003 affirmed, with $25 costs. Appeal from order dated July 7, 2003 dismissed, without costs, as superceded by the appeal from the aforesaid judgment.
The action arises out of the defendants' rental of a single-family residence owned by plaintiff and located at 109 Bank Street, in Manhattan. The extensive record developed on the parties' cross motions for summary judgment, including defendant Kaufelt's own deposition testimony, conclusively demonstrates that defendants, as tenants, breached the provisions of paragraph 38 of the rider to the governing lease agreement, which, while permitting defendants to use and list in their own names plaintiff's telephone number during their occupancy period, required defendants to "re-list" the telephone number in plaintiff's name upon the expiration of [*2]the lease term. Irrespective of whether plaintiff possessed a cognizable possessory interest in the telephone number (compare Slenderella Sys. of Berkeley, Inc. v Pacific Tel. & Tel. Co., 286 F2d 488, 490 [2d Cir 1961], with In re Fontainebleau Hotel Corp., 508 F2d 1056, 1059 [5th Cir 1975]; see also Matter of
file:///C|/Users/Peter/Desktop/NY/2/2005_25147.htm[4/21/2013 2:13:14 PM] Ehrenworth v Kaufelt (2005 NY Slip Op 25147)
Atlantic & W. Travel v New York Tel. Co., 40 Misc 2d 950, 951 [1963]), plaintiff clearly was entitled to contractually protect his right to the continued use of the telephone number assigned to him

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