250 W. Broadway Realty Corp. v FFE LLC

[*1] 250 W. Broadway Realty Corp. v FFE LLC 2009 NY Slip Op 50533(U) [23 Misc 3d 126(A)] Decided on March 30, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570840/07.

250 West Broadway Realty Corp., Petitioner-Landlord-Respondent,

against

FFE LLC d/b/a Della Rovere, 250 West Broadway, Ground Floor Store, New York, New York, 10013, Respondent-Tenant-Appellant.

Tenant appeals from a final judgment of the Civil Court of the City of New York, New York County (Jeffrey K. Oing, J.), entered October 7, 2007, after a nonjury trial, awarding possession to landlord in a commercial holdover summary proceeding, and bringing up for review an order of the same court (Manuel J. Mendez, J.), dated August 8, 2007, which granted landlord's motion for summary judgment to the extent of dismissing tenant's first, second and third affirmative defenses.

Per Curiam.

Final judgment (Jeffrey K. Oing, J.), entered October 7, 2007, affirmed, with $25 costs.

A possessory judgment was properly awarded to landlord upon tenant's failure to establish its defense of impossibility of performance. The record shows that tenant's inability to obtain the requisite permits from the Department of Buildings was not "an unanticipated event that could not have been foreseen and guarded against in the contract" (Kel Kim Corp. v Central Markets, Inc., 70 NY2d 900 [1987]). To the contrary, Article 63 of the governing commercial lease agreement makes clear that the uncertainty of the permit issue was anticipated and that tenant was given the option to terminate the lease in the event it was unable to obtain all "permits, consents, approval and or licenses" to operate a "wine restaurant." While tenant's excuse for its inability to cure its default was landlord's failure to obtain a new certificate of occupancy, it never identified any lease provision requiring landlord to obtain a certificate of occupancy.

Tenant's remaining affirmative defenses were properly dismissed on landlord's summary judgment motion. To the extent that tenant pleaded a defense of waiver based on landlord's acceptance of rent, such a defense was defeated by the unambiguous terms of the nonwaiver clause in the lease agreement (see Excel Graphic Techs., Inc. v CFG/AGSCB 75 Ninth Avenue, LLC., 1 AD3d 65 [2003], lv dismissed 2 NY3d 794 [2004]). Nor did tenant submit evidence sufficient to raise triable issues as to its laches and unclean hands defenses. We have [*2]considered tenant's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: March 30, 2009