46 Warren LLC v Lynch

[*1] 46 Warren LLC v Lynch 2015 NY Slip Op 51098(U) Decided on July 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570028/15

46 Warren LLC., Petitioner-Landlord-Respondent,

against

Holly Lynch, 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 17, 2014, which, upon a prior order granting landlord's motion for summary judgment, awarded landlord a recovery of rent arrears in the principal sum of $54,394.48, in a nonpayment summary proceeding.

Per Curiam.

Final judgment (James E. d'Auguste, J.), entered September 17, 2014, reversed, with $30 costs, and those branches of landlord's motion which were to dismiss tenant's seventh affirmative defense and counterclaim, and for summary judgment on its cause of action for unpaid rent are denied.

Summary judgment is unwarranted in this nonpayment proceeding, since triable issues are raised as to whether tenant is entitled to a rent abatement for conditions in the demised premises. We find unavailing landlord's claim that an abatement is unwarranted in view of the "commercial" nature of the underlying tenancy. The lease agreement executed by the parties expressly stated that the premises were to be used for residential purposes only; and paragraph 6 thereof provided that landlord will supply heat, hot and cold water in the bathroom and kitchen sink, and that "[t]enant may enforce [her] rights under the warranty of habitability." In addition, the certificate of occupancy specifies that the premises are to be used as a "Class A apartment." Landlord, who claims use of a residential lease form was an inadvertent error, never sought or obtained reformation to reflect the purported commercial nature of the tenancy (see Katsam Holdings LLC v 419 W. 55th St. Corp., 58 AD3d 444 [2009]). Nor does tenant seek any such relief (see CCA 208[c][1]). To the contrary, tenant, while acknowledging that the premises were intended to be used for business purposes, alleges that the premises were furnished as a residence and that she bargained for the essential services of a residence, as provided for in the lease. In these circumstances and at this juncture, there is no basis to disregard the parties' written agreement (see Corporate Graphics v Mehlman Mgt. Corp., 81 AD2d 767 [1981] ["this is a case in which both landlord and tenant were willing to have the premises used for a commercial use pretending that it was used for residential purposes"]). "A lease is subject to the rules of construction applicable to any other agreement and "[o]nce a contract is made, only in unusual [*2]circumstances will a court relieve the parties of the duty of abiding by it" (George Backer Mgt. Corp. v. Acme Quilting Co., 46 NY2d 211, 218 [1978]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: July 21, 2015