1626 Second Ave., LLC v Notte Rest. Corp.

[*1] 1626 Second Ave., LLC v Notte Rest. Corp. 2010 NY Slip Op 50910(U) [27 Misc 3d 138(A)] Decided on May 24, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ
.

1626 Second Avenue, LLC, Petitioner-Landlord-Respondent, 570108/10

against

Notte Restaurant Corp., Respondent-Tenant-Appellant.

Tenant appeals from a final judgment of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered July 21, 2009, after a nonjury trial, which granted landlord possession and recovery of rent arrears in the sum of $459,039.20 in a nonpayment summary proceeding.

Per Curiam.

Final judgment (Jose A. Padilla, Jr., J.), entered July 21, 2009, affirmed, with $25 costs.

We sustain the final judgment in landlord's favor upon the trial of this nonpayment proceeding. In the absence of an express lease provision specifying the circumstances under which a tenant may withhold rent, the tenant's rental obligations are not suspended even where the landlord's violation of the lease is established (see Westchester County Indus. Dev. Agency v Morris Indus. Bldrs., 278 AD2d 232 [2000], lv dismissed 96 NY2d 792 [2001]; 3 Dolan, Rasch's Landlord and Tenant-Summary Proceedings § 43:31 [4th ed]). Even assuming, arguendo, that landlord breached the lease in the manner alleged by tenant, tenant's remedy lies in the plenary action it commenced against landlord in Supreme Court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 24, 2010