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Posh Ny, Inc v. Lobern Development Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


January 10, 2011

POSH NY, INC.,
RESPONDENT,
v.
LOBERN DEVELOPMENT COMPANY, LLC,
APPELLANT.

Appeal from an order of the District Court of Nassau County, Third District (Gary Franklin Knobel, J.), entered June 24, 2009.

Posh NY, Inc. v Lobern Dev. Co., LLC

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 10, 2011

PRESENT:

TANENBAUM, J.P., MOLIA and IANNACCI, JJ

The order, insofar as appealed from as limited by the brief, granted the branch of plaintiff's motion seeking summary judgment on its cause of action for the return of the balance of its security deposit and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In September 2008, defendant, then plaintiff's landlord, commenced a commercial nonpayment summary proceeding based on plaintiff's failure to pay two months' rent, and related maintenance and tax charges, pursuant to a five-year lease which had commenced on November 1, 2003. The lease also provided for penalties payable as additional rent if the rents were not timely paid. There is no dispute that, from February 2006 through September 2007, plaintiff's rent payments were frequently untimely, and that, under the lease, defendant was entitled to recover the additional rents resulting therefrom. Nevertheless, the petition made no reference to those additional rents and, on September 18, 2008, the parties stipulated to settle the summary proceeding on terms which permitted plaintiff to satisfy outstanding rent obligations at a reduced rate and created a new month-to-month tenancy, also at a reduced rent, until January 2009, whereupon a new, increased rent would apply. On December 10, 2008, the parties agreed to terminate the month-to-month tenancy upon plaintiff's payment of all rents due through December 2008 as provided in the September 2008 stipulation, and upon plaintiff's surrender of possession by December 31, 2008. The agreement also stated that with the final rent's payment, an "accounting will be entered as all rent paid in full," that "all obligations between the parties will cease without any further liability," and that the security deposit would be returned within 30 days of plaintiff's surrender of possession. Although plaintiff timely vacated the premises, defendant withheld $8,745 of the $14,000 security deposit, asserting plaintiff's liability for the unpaid additional rent arising from the late payments in 2006 and 2007. Plaintiff then brought this action to recover, among other things, the balance of the security deposit. Thereafter, plaintiff moved for, among other things, summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the District Court granted the branch of plaintiff's motion seeking summary judgment on its cause of action for the return of the balance of its security deposit and denied defendant's cross motion. We affirm.

By its terms, the agreement of December 10, 2008 terminated the tenancy and settled plaintiff's outstanding financial obligations to defendant, including rent, pursuant to the stipulation of September 18, 2008. Neither the summary proceeding, the stipulation settling that proceeding, nor the December 2008 agreement made any reference to a claim for unpaid additional rents, and plaintiff's payment of the December 2008 rent and timely surrender of possession satisfied its obligations under the surrender agreement, thereby entitling plaintiff, under the terms of the agreement, to the return of its security deposit. Moreover, even were we to find that the terms of the stipulation and surrender agreement did not preclude an independent claim for unpaid additional rents, defendant's failure to raise the claim for those rents in the nonpayment summary proceeding and the September 18, 2008 settlement thereof bars defendant from asserting the claim as a defense or counterclaim in this action to recover the balance of the security deposit (see Emery Roth & Sons v National Kinney Corp., 44 NY2d 912 [1978]).

Accordingly, the order, insofar as appealed from, is affirmed.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.

Decision Date: January 10, 2011

20110110

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