LLC v RIS Real Props., Inc.

[*1] LLC v RIS Real Props., Inc. 2015 NY Slip Op 50313(U) Decided on March 13, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 13, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
15-066/069

APF 286 Mad LLC, Gan 286 Madison, LLC, and Madison Associates, LLC, Petitioners-Landlords- Respondents,

against

RIS Real Properties, Inc., Respondent-Tenant-Appellant, -and- Robert Strougo, Esq., NYC Realty,Watters & Svetskey, LLP, David M. Blum, Esq., Robert A. Burstein, Esq., Keith E .Wilson, Esq., Manolo Costa New York, and XYZ, Inc., Respondent.

Tenant, as limited by its briefs, appeals from (1) an order of the Civil Court of the City of New York, New York County (Frank P. Nervo, J.), entered January 2, 2013, which granted landlords' motion for summary judgment dismissing tenant's affirmative defenses and counterclaims in a nonpayment summary proceeding, (2) an order of the same court (Nancy M. Bannon, J.), entered on or about June 28, 2013, after a nonjury trial, which awarded landlords a recovery of rent and additional rent in the principal sum of $145,632.33, and attorneys' fees in the principal sum of $65,199.56, (3) a judgment (same court and Judge), entered July 25, 2013, in favor of landlords and awarding them damages in the principal sum of $210,831.89, and (4) an order (same court and Judge), dated August 20, 2013, which, sua sponte, amended the order of June 28, 2013, to award landlords a judgment of possession.

Per Curiam.

Judgment (Nancy M. Bannon, J.), entered July 25, 2013, affirmed, with $25 costs. Appeals from orders (Nancy M. Bannon, J.), entered on or about June 28, 2013 and (Frank P. Nervo, J.), entered January 2, 2013, dismissed, without costs, as subsumed in the appeal from the judgment (see CPLR 5501[a][1]). Appeal from order (Nancy M. Bannon, J.), dated August 20, 2013, dismissed, without costs, as nonappealable.

We sustain the final judgment issued in landlords' favor upon the nonpayment petition. [*2]Tenant's affirmative defenses and counterclaims alleging, inter alia, actual and constructive eviction, and breach of the covenant of quiet enjoyment, were properly dismissed on landlords' summary judgment motion. Landlords' entry into a portion of the demised premises for the purpose of repairing the building facade in response to a Department of Buildings' notice of violation does not give rise to an abatement claim, and does not constitute an eviction, either actual or constructive, where, as here, the governing commercial lease agreement specifically authorized landlord to enter the demised premises to make "repairs, alterations, additions or improvements in or to any portion of the building," including the exterior facade, and expressly precludes a rent abatement based on such entry (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 St. Corp. v Bein, 226 App Div 73, 77 [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], lv denied 7 NY3d 704 [2006]).

The award of attorneys' fees to landlord has ample support in the record and is not disturbed. The court appropriately evaluated counsel's testimony and records as to the nature, extent and necessity of the legal services rendered on landlords' behalf in the fiercely-litigated commercial lease dispute (see 542 East 14th Street LLC v Lee, 66 AD3d 18, 24-25 [2009]).

We have considered tenant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: March 13, 2015