APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
February 23, 2011
THE EMPIRE STATE BUILDING COMPANY, LLC,
TCG PRODUCTIONS, INC.,
Empire State Bldg. Co., LLC v TCG Prods., Inc.
Decided on February 23, 2011 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 This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
Landlord appeals from that portion of an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered November 2, 2009, which denied its motion to dismiss tenant's first, second and third affirmative defenses in a commercial nonpayment summary proceeding. Tenant cross-appeals from that portion of the aforesaid order which denied its motion for leave to conduct disclosure.
Order (Joan M. Kenney, J.), entered November 2, 2009, insofar as appealed and cross-appealed from, modified to grant landlord's motion to strike tenant's first, second and third affirmative defenses; as modified, order affirmed, without costs.
Landlord commenced this commercial summary nonpayment proceeding against tenant, alleging, among other things, that tenant was required under the governing commercial lease agreement to pay certain additional rent stemming from the cost of electricity, but failed to do so. In a prior action involving the parties, Supreme Court dismissed tenant's challenge to the subject "ELECTRICITY" provision of the lease, specifically rejecting tenant's assertions that this provision was ambiguous and permitted landlord to reap an "illegal windfall profit" (see Adams, Stevens & Bradley Ltd. v Empire State Bldg. Co., LLC, 2009 NY Slip Op 33045[U] ).
Since tenant had a full and fair opportunity to litigate the issues of whether the provision was ambiguous and whether it permitted landlord to reap an "illegal windfall profit," tenant is collaterally estopped from relitigating those issues in the instant nonpayment proceeding (see P.W.B. Enters. v Moklam Enters., 221 AD2d 184 ). Therefore, tenant's first and third affirmative defenses must be dismissed (see generally Starbare II Partners v Sloan, 243 AD2d 309 ). Tenant's second affirmative defense has been abandoned and must be also dismissed.
We note that, even assuming in tenant's favor that it is not estopped from relitigating the issues determinative of its first and third affirmative defenses, those defenses are, as a matter of law, meritless (see Accurate Copy Serv. of America, Inc. v Fisk Building Assoc. LLC, 72 AD3d 456 , lv denied ___ NY3d ___, 2010 NY Slip Op 85492 ; see also Gillman v Chase Manhattan Bank, NA, 73 NY2d 1 ; George Backer Mgt. Corp. v Acme Quilting Co., Inc., 46 NY2d 211 ).
With respect to tenant's cross-appeal, since tenant's first and third affirmative defenses must be dismissed, tenant's disclosure requests are moot.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 23, 2011
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