APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
December 7, 2010
ONLY PROPERTIES, LLC,
Only Props., LLC v Cavlak
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on December 7, 2010
PRESENT: Hunter, Jr., J.P., Shulman, J.
Landlord appeals from an order of the Civil Court of the City of New York, New York County (Kibbie F. Payne, J.), dated June 11, 2010, which denied its motion for summary judgment in a nonpayment summary proceeding.
Order (Kibbie F. Payne, J.), dated June 11, 2010, reversed, with $10 costs, landlord's motion for summary judgment on its claim to recover rent arrears and to dismiss tenant's counterclaim granted, and matter remanded to Civil Court for further proceedings with respect to landlord's claim for attorneys' fees.
The commercial lease between the parties expressly provides that tenant accepted the premises "as is"; that tenant "examined and determined the adequacy of the premises for its business"; and that landlord "neither warrant[ed] nor represent[ed] that the premises themselves or the work referenced [in Tenant's Work' provisions] meets the standards or guidelines of the New York City Department of Health [DOH]...." As to the "Tenant's Work" provisions, the lease provides that tenant "shall be responsible, at Tenant's sole cost and expense, to perform Tenant's desired alterations," and that all work "shall be performed to the Landlord's sole satisfaction using licensed plumbers and electricians and materials and methods approved by Landlord." Landlord ultimately performed the alterations in accordance with a subsequent oral agreement between landlord and tenant, pursuant to which tenant compensated landlord for the work performed. However, there is no documentary evidence that landlord warranted that its completion of the alterations would render the premises in compliance with applicable standards and guidelines of the DOH with respect to tenant's use of the premises. In light of the above referenced lease provision stating that landlord did not warrant that the premises or alterations met DOH standards and guidelines and another provision of the lease requiring modifications to the lease to be in writing, neither the DOH violations issued for tenant's establishment nor tenant's claims of a nonconforming certificate of occupancy provide tenant with a valid defense to this nonpayment summary proceeding (see Silver v Moe's Pizza, Inc., 121 AD2d 376 ). We further note that DOH cited tenant for violations independent of those related to the alterations provided for in the lease. To the extent tenant may have claims against landlord for damages, tenant may assert such claims in an appropriate forum.
Since we grant landlord's motion for summary judgment, landlord may be entitled, under the lease, to an award of attorneys' fees. However, landlord did not address in its brief its claim for such fees. Therefore, we remand the matter to Civil Court for further proceedings on that claim.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 07, 2010
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