
    Thirty Bay Street Company, Respondent, v City of New York, Appellant.
   —In an action to recover rent due under a lease, in which the defendant counterclaims for a declaration that the lease had no binding effect on the parties after July 31, 1975, defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County, dated November 3, 1977, as denied its motion for summary judgment on its counterclaim, and plaintiff cross-appeals from so much of that same order as denied its motion for partial summary judgment for rent owed for the use and occupancy of its property from July 1, 1976 to August 1, 1977. Order modified, on the law, by deleting therefrom the first decretal paragraph and adding thereto provisions denying the defendant’s motion for summary judgment and granting the plaintiff’s motion for partial summary judgment. As so modified, order affirmed, without costs or disbursements. Plaintiff made a prior motion for summary judgment for rent due as a result of the continued use and occupancy of the premises by the defendant from July, 1975 until June, 1976. That motion was granted and defendant never appealed from the judgment entered thereon. As a matter of fact it satisfied that judgment. Therefore, plaintiff’s motion for partial summary judgment to recover the rental for the subsequent year should have been granted when defendant’s continued use was established. On defendant’s motion for summary judgment on its counterclaim, Special Term held that factual issues exist precluding the granting of the motion. This court agrees with that determination, since it is not clear whether the Commissioner of Real Estate had been delegated the authority to fix the rental for the last five years of the lease. Martuscello, J. P., Latham, Shapiro and O’Connor, JJ., concur.  