80 Varick St. Group, L.P. v MacPherson

80 Varick St. Group, L.P. v MacPherson 2013 NY Slip Op 00009 Decided on January 3, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 3, 2013
Gonzalez, P.J., Friedman, Saxe, Richter, Abdus-Salaam, JJ.
8929 108635/09

[*1]80 Varick Street Group, L.P., Plaintiff-Respondent,

v

Donald MacPherson, Defendant-Appellant.




Jeffrey S. Ween & Associates, New York (Jeffrey S. Ween of
counsel), for appellant.
Belkin Burden Wenig & Goldman LLP, New York (Magda L.
Cruz of counsel), for respondent.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered May 7, 2012, which, inter alia, granted plaintiff's cross motion for summary judgment on its cause of action for ejectment, unanimously affirmed, without costs.

Defendant's mezzanine was a breach of a substantial obligation of his tenancy that was not waivable in light of both its illegality (see e.g. 2 W. 32nd St. Corp. v Levine, 199 Misc 1020, 1021 [App Term, 1st Dept 1951]) and the specific non-waiver clause in the lease which provided that acceptance of rent does not waive a violation.

We have considered defendant's other contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 3, 2013

CLERK