Brusco v Soclof

[*1] Brusco v Soclof 2009 NY Slip Op 51311(U) [24 Misc 3d 128(A)] Decided on June 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, J.
570429/08

Nicola S. Brusco, Plaintiff-Respondent,

against

Douglas D. Soclof, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Geoffrey D. Wright, J.), entered August 28, 2007, which granted plaintiff's motion for summary judgment in the principal sum of $46,556.12.

Per Curiam.

Order (Geoffrey D. Wright, J.), entered August 28, 2007, affirmed, with $10 costs.

Liability was properly imposed upon defendant, as guarantor of the obligations of a corporate tenant to a commercial lease agreement. Although issuance of a warrant of eviction in the prior nonpayment summary proceeding terminated the landlord-tenant relationship between plaintiff-landlord and the tenant, the underlying lease agreement contained an enforceable survival clause providing that the tenant would remain liable for any rent or additional rent reserved for the balance of the lease term (see Holy Props. Ltd. v Kenneth Cole Prod., Inc., 87 NY2d 130, 134 [1995]). Defendant, as guarantor, was liable for unpaid rents which accrued up to the effective date of the reletting of the demised commercial premises.

The June 8, 2004 stipulation settling the earlier eviction proceeding, to which defendant was a signatory, did not exonerate defendant, since the stipulation, by its terms, provided that the guaranty "shall survive this stipulation and any execution of the warrant." "Neither the stipulation of settlement ... nor the nonpayment dispossess proceeding, evidenced a surrender of the premises operating to release defendant from continuing liability under the lease" (Lexington Ave. & 42nd St. Corp. v Pepper, 221 AD2d 273, 274 [1995]).

We have considered defendant's remaining arguments, including the defense of accord and satisfaction, and find them lacking in merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 29, 2009