Andejo Corp. v South St. Seaport Ltd. Partnership

Andejo Corp. v South St. Seaport Ltd. Partnership 2015 NY Slip Op 05767 Decided on July 2, 2015 Appellate Division, First Department 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 July 2, 2015
Gonzalez, P.J., Sweeny, Renwick, Saxe, Feinman, JJ.
15621 603707/04

[*1] Andejo Corporation, doing business as Seaport Watch Company, et al., Plaintiffs, Fulton Market Retail Fish Inc., doing business as Simply Seafood, Plaintiff-Appellant,

v

South Street Seaport Limited Partnership, et al., Defendants-Respondents.

Hill Rivkin, LLP, New York (John L. O'Kelly of counsel), for appellant.

DLA Piper (US) LLP, New York (Christopher M. Strongosky of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Shlomo S. Hagler, J.), entered November 14, 2013, which, following a nonjury trial, awarded defendants landlords South Street Seaport Limited Partnership and Seaport Marketplace, L.L.C. full and exclusive use and possession of the subject premises, unanimously affirmed, without costs.

There is no basis upon which to disturb the factual findings of the trial court which rest largely on credibility determinations and are supported by evidence establishing that plaintiff tenant was in default of its lease based on its failure to pay rent and utilities (see Claridge Gardens v Menotti , 160 AD2d 544 [1st 1990]). The lease provided that upon "the occurrence and continuance of an Event of default," defendants landlords, without notice, could elect to terminate the lease.

The trial court also properly found, based on evidence that plaintiff tenant deliberately and intentionally violated other lease provisions by failing to pay any utility charges for approximately a decade and misreporting gross sales, that equitable considerations do not warrant a finding that plaintiff should not forfeit the lease (see First Natl. Stores v Yellowstone Shopping Ctr. , 21 NY2d 630, 637 [1968]).

We have considered plaintiff tenant's remaining arguments, including that it was entitled to exercise an option to renew the lease, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 2, 2015

CLERK