114 W. 26th St. Assoc., L.P. v Metropolis Fencing Sports Ctr. LLC

[*1] 114 W. 26th St. Assoc., L.P. v Metropolis Fencing Sports Ctr. LLC 2007 NY Slip Op 50650(U) [15 Misc 3d 130(A)] Decided on April 3, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 3, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McCooe, J.P., Davis, Schoenfeld, JJ
570402/06.

114 West 26th Street Associates, L.P., Petitioner-Landlord-Respondent,

against

Metropolis Fencing Sports Center LLC, Respondent-Tenant-Appellant.

Tenant appeals from a final judgment of the Civil Court of the City of New York, New York County (Paul G. Feinman, J.), entered October 1, 2003, after a nonjury trial, which granted landlord possession and a recovery of rent arrears in the sum of $237,965.39 in a nonpayment summary proceeding.

PER CURIAM:
Final judgment (Paul G. Feinman, J.), entered
October 1, 2003 affirmed, with $25 costs.

Landlord was properly awarded a possessory judgment on the nonpayment petition, there being no showing that it fraudulently induced execution of the commercial lease agreement or otherwise failed to act in good faith in leasing the premises on an "as is" basis. "In the case of a commercial lease where the landlord has made no covenant to obtain a certificate of occupancy and the tenant's right of possession is wholly undisturbed, the mere absence of a certificate of occupancy does not relieve the tenant of its fundamental obligation to pay rent" (Silver v Moe's Pizza, 121 AD2d 376, 378 [1998]). We note the tenant's three-year delay in perfecting the appeal.

This Constitutes the Decision and Order of the Court.
I concur I concur I concur

Decision Date: April 3, 2007