737 Park Ave. Acquisition LLC v Robert B. Jetter, M.D., PLLC

[*1] 737 Park Ave. Acquisition LLC v Robert B. Jetter, M.D., PLLC 2014 NY Slip Op 51879(U) Decided on December 31, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 31, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
570026/14

737 Park Avenue Acquisition LLC, Petitioner-Landlord-Respondent, -

against

Robert B. Jetter, M.D., PLLC, Respondent-Tenant-Appellant.

Tenant appeals from a final judgment of the Civil Court of the City of New York, New York County (James E. d'Auguste, J.), entered September 23, 2013, after a nonjury trial, awarding landlord possession and a net recovery of rent arrears in the sum of $111,293.02 in a commercial nonpayment summary proceeding.

Per Curiam.

Final judgment (James E. d'Auguste, J.), entered September 23, 2013, affirmed, with $25 costs, for the reasons stated by James E. d'Auguste, J. at Civil Court.

Giving proper effect to the clear terms of the governing commercial lease agreement authorizing landlord to make "repairs, alterations, additions or improvements in or to any portion of the building," and to "install scaffolding and/or a sidewalk bridge or shed," the trial court was warranted in rejecting tenant's claims of partial actual and constructive eviction based on landlord's renovation work at the building premises (see Winston Churchill Owners Corp. v Churchill Operating Corp., 193 AD2d 396 [1993]; Bijan Designer For Men, Inc. v St. Regis Sheraton Corp., 142 Misc 2d 175 [1989] affd, 150 AD2d 244 [1989]; Two Rector Street Corp. v Bein, 226 App Div 73 [1929]). Alterations to leased premises, made with the consent of the tenant, do not amount to an eviction, no matter how extensive or the degree of interference with the tenant's occupancy (see Jackson v Westminister House Owners, Inc., 24 AD3d 249 [2005]). "[Tenant's] argument that the exculpatory provisions do not protect acts that would otherwise constitute a partial actual eviction or constructive eviction, if accepted, would largely read them out of the lease" (Cut-Outs, Inc. v Man Yun Real Estate Corp., 286 AD2d 258, 260 [2001], lv denied 100 NY2d 507 [2003]). Further, tenant's claim that it was precluded from using portions of the premises as intended must fail, in view of the "No Representations" provision set forth in the lease.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: December 31, 2014