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 2015 NY Slip Op 51153(U) Decided on August 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 7, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570131/15

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

against

Robert B. Jetter, M.D., PLLC, Respondent-Tenant-Appellant, - and - Abbey Road Office Based Surgery PLLC, Respondent-Undertenant.

Tenant appeals from (1) an order of the Civil Court of the City of New York, New York County (Frank P. Nervo, J.), dated December 2, 2013, which granted landlord's motion to strike tenant's affirmative defenses and for summary judgment as to liability in a nonpayment summary proceeding and (2) a final judgment of the same court (Jennifer G. Schecter, J.), entered January 21, 2014, after a nonjury trial on damages, which awarded landlord a recovery of rent arrears in the principal sum of $130,067.14.

Per Curiam.

Final judgment (Jennifer G. Schecter, J.), entered January 21, 2014, reversed, with $30 costs, and those portions of landlord's motion which were to dismiss tenant's third affirmative defense and for summary judgment are denied. Appeal from order (Frank P. Nervo, J.), dated December 2, 2013, dismissed, without costs, as subsumed in the appeal from the final judgment.

The commercial tenant was not barred by res judicata or collateral estoppel from litigating its partial constructive eviction defense in this nonpayment proceeding. The facts supporting this defense relate to different conditions at the premises and covered a time period subsequent to that involved in the prior nonpayment proceeding between the parties (see Katz Park Ave. Corp. v Jagger, 46 AD3d 186, 191 [2007], affd 11 NY3d 314 [2008]).

Nor do the exculpatory provisions of the parties' lease preclude this defense as a matter of law, since the limited record so far developed raises triable issues as to whether the acts complained of went beyond the rights reserved in the lease, and substantially and materially deprived tenant of the beneficial use of the premises (see Two Rector St. Corp. v Bein, 226 App Div 73 [1929]; Bostany v Trump Org. LLC., 88 AD3d 553 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: August 07, 2015