The Board of Managers of the Saratoga Condominium, Plaintiff-Respondent,
Nir Shuminer, Defendant-Appellant. Scanio Movers, Inc., etc, Plaintiff-Appellant,
The Saratoga New York LLC, doing business as The Saratoga Condominium, et al., Defendants-Respondents.
Law Office of Bennett D. Krasner, Atlantic Beach (Elizabeth
Mark Meyerson of counsel), for appellants.
Buss & Jacobs, LLP, Yonkers (Ryan P. Kaupelis of
counsel), for respondents.
Richter, J.P., Mazzarelli, Kahn, Gesmer, JJ.
Supreme Court, New York County (Ellen M. Coin, J.), entered
June 5, 2015, in favor of plaintiff the Board of Managers of
the Saratoga Condominium (the Landlord), and against
defendant Nir Shuminer in the total amount of $133, 735.21,
and bringing up for review an order, same court and Justice,
entered February 20, 2013, insofar as it granted the
Landlord's motion for summary judgment in lieu of
complaint; and judgment, same court and Justice, entered June
8, 2016, against plaintiff Scanio Movers Inc., t/a Scanio
Moving & Storage, Inc. (Scanio), and in favor of
defendants the Saratoga New York LLC d/b/a the Saratoga
Condominium and the Saratoga Condominium (together the
Landlord) in the total amount of $618, 640.41, and bringing
up for review an order, same court and Justice, entered July
30, 2015, which, among other things, granted said
defendants' motion for summary judgment dismissing the
complaint and for summary judgment on their counterclaims,
unanimously affirmed, without costs.
these consolidated appeals, Scanio, a commercial tenant,
claimed that it was constructively evicted due to scaffolding
and sidewalk sheds around its store, which were erected in
preparation for facade work to the Saratoga Condominium.
Scanio vacated the premises and commenced an action alleging,
among other things, constructive eviction against the
Landlord. The Landlord counterclaimed for, among other
things, the remaining rent due, and commenced a separate
action against Scanio's president and guarantor,
motion court correctly granted the Landlord's motions for
summary judgment. Scanio's claim for constructive
eviction is barred by the exculpatory provisions of the
lease. Those provisions provide that the Landlord is not
liable for "inconvenience, annoyance or injury to
business" caused by the erection of scaffolding and
sidewalk sheds (Cut-Outs, Inc. v Man Yun Real Estate
Corp., 286 A.D.2d 258, 260 [1st Dept 2001], lv
denied 100 N.Y.2d 507');">100 N.Y.2d 507 ). In any event, the
erection of temporary scaffolding and sidewalk sheds does not
constitute constructive eviction, because the scaffolding and
sheds are authorized by the lease (Carlyle, LLC v Beekman
Garage LLC, 133 A.D.3d 510, 510 [1st Dept 2015]).
extent Scanio has not abandoned its remaining causes of
action, the motion court correctly dismissed those claims as
well. In the absence of a constructive eviction, there is no
breach of the covenant of quiet enjoyment (Dave Herstein
Co. vColumbia Pictures Corp., 4 N.Y.2d 117, 121 ).
The exculpatory provisions also barred Scanio's claim for
lost profits (see Hooters of Manhattan, Ltd. v 211 W. 56
Assoc., 51 A.D.3d 410, 411-412 [1st Dept 2008]). To the
extent that Scanio and Shuminer assert that the Landlord
breached the lease because it did not promptly proceed with
facade repairs, that argument is unavailing because the
Landlord was not required under the lease to minimize
interference with Scanio's use and occupancy (cf.
Incredible Christmas Store-N.Y. v RCPI Trust, 307 A.D.2d
816, 817 [1st Dept 2003] [lease required the landlord to use
reasonable efforts to minimize interference], and Union
City Union Suit Co. v Miller, 162 A.D.2d 101, 104 [1st
Dept 1990] [same], lv denied 77 N.Y.2d 804');">77 N.Y.2d 804 ).
Scanio was not constructively evicted from its premises,
Shuminer had no valid defense to recovery of the unpaid rent
against him as guarantor. Contrary to Shuminer's
argument, "[a]n unconditional guaranty is an instrument
for the payment of money only' within the meaning of CPLR
3213" (Cooperatieve Centrale
Raiffeisen-Boerenleenbank, B.A., "Rabobank Intl., "
N.Y. Branch v Navarro, 25 N.Y.3d 485, 492 ).
Shuminer may not dispute the amount of the judgment rendered
against him, because he himself had successfully moved to
amend the judgment to reflect that amount; thus, he is not
aggrieved by the judgment (see CPLR 5511;
Parochial Bus Sys. v Board of Educ. of City of N.Y.,
60 N.Y.2d 539, 544 ). Further, his appeal from the
judgment did not bring up for review the part of the order
entered February 20, 2013 that denied his cross motion for
consolidation or a joint trial (Fo ...