46 Warren, LLC v Lynch

46 Warren, LLC v Lynch 2017 NY Slip Op 08317 Decided on November 28, 2017 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 November 28, 2017
Richter, J.P., Kapnick, Webber, Oing, Singh, JJ.
5048 570028/15

[*1]46 Warren, LLC, Petitioner-Landlord-Appellant,

v

Holly Lynch, Respondent-Tenant-Respondent.

Goodfarb & Sandercock, LLP, New York (Adam D. Goodfarb of counsel), for appellant.

Brill & Meisel, New York (Kerry M. Fontana of counsel), for respondent.

Order, Appellate Term of the Supreme Court, First Department, entered July 23, 2015, which reversed a judgment of the Civil Court, New York County (James E. d'Auguste, J.), entered September 17, 2014, awarding petitioner landlord unpaid rent, late charges and interest, upon an order that granted petitioner summary judgment on its claim for unpaid rent, and dismissing respondent tenant's affirmative defense and counterclaim for breach of the warranty of habitability, unanimously affirmed, without costs.

While a warranty of habitability will not be implied in a commercial lease (Rivera v JRJ Land Prop. Corp., 27 AD3d 361, 364 [1st Dept 2006]; see Real Property Law § 235-b), respondent does not rely on an implied warranty. She cites the express terms of the subject lease, which was prepared by petitioner, which permitted only residential use, and included petitioner's warranty of habitability and agreement to provide certain services, such as heat and hot water, enforceable by the warranty of habitability. The parties acknowledge that they agreed that respondent could use the premises for commercial purposes, setting up the apartment as a home office. However, petitioner neither sought reformation of the lease nor demonstrated "unusual circumstances" that would relieve it of its duty to abide by the lease terms (see George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 218 [1978]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 28, 2017

CLERK