New York Supreme and/or Appellate Courts Appellate Division, First Department
January 3, 2013
80 VARICK STREET GROUP, L.P., PLAINTIFF-RESPONDENT,
DONALD MACPHERSON, DEFENDANT-APPELLANT.
80 Varick St. Group, L.P. v MacPherson
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on January 3, 2013
Gonzalez, P.J., Friedman, Saxe, Richter, Abdus-Salaam, JJ.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered May 7, 2012, which, inter alia, granted plaintiff's cross motion for summary judgment on its cause of action for ejectment, unanimously affirmed, without costs.
Defendant's mezzanine was a breach of a substantial obligation of his tenancy that was not waivable in light of both its illegality (see e.g. 2 W. 32nd St. Corp. v Levine, 199 Misc 1020, 1021 [App Term, 1st Dept 1951]) and the specific non-waiver clause in the lease which provided that acceptance of rent does not waive a violation.
We have considered defendant's other contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 3, 2013
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