210 E. 86th St. Corp. v Eastside Exhibition Corp.

[*1] 210 E. 86th St. Corp. v Eastside Exhibition Corp. 2018 NY Slip Op 50627(U) Decided on April 27, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2018
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Gonzalez, J.P., Cooper, Edmead, JJ.
17-432

210 East 86th Street Corp., Petitioner-Landlord-Appellant,

against

Eastside Exhibition Corp., Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County, (Lisa A. Sokoloff, J.), dated May 31, 2017, which denied its motion for summary judgment of possession in a holdover summary proceeding.

Per Curiam.

Order (Lisa A. Sokoloff, J.), dated May 31, 2017, reversed, with $10 costs, landlord's motion for summary judgment of possession granted, and the matter remanded to Civil Court for a hearing to determine the amount of use and occupancy and reasonable attorneys' fees due landlord. Execution of the warrant of eviction shall be stayed for 60 days from service of a copy of this order with notice of entry.

Landlord's motion for summary judgment of possession should have been granted based upon its unrebutted showing that tenant breached the insurance coverage requirements of the governing commercial lease agreement. The record evidence conclusively established that, for the policy year January 31, 2015 to January 31, 2016, tenant failed to maintain liability insurance in the required amount and naming landlord as an additional insured. A tenant's failure to maintain insurance coverage as required by the lease is an incurable default (see Prince Fashions, Inc. v 60G 542 Broadway Owner, LLC, 149 AD3d 529 [2017]; Kyung Sik Kim v Idylwood, NY, LLC, 66 AD3d 528 [2009]; Jackson 37 Co., LLC v Laumat, LLC, 31 AD3d 609, 610 [2006]; see generally Brainerd Mfg. Co. v Dewey Garden Lanes, 78 AD2d 365 [1981], appeal dismissed 53 NY2d 701 [1981]).

Tenant's waiver argument was barred by the "no waiver" clause of the lease (see Excel Graphics Tech. v CFG/AGSCB 75 Ninth Ave., 1 AD3d 65, 69-70 [2003], lv dismissed 2 NY3d 794 [2004]; see also Jefpaul Garage Corp. v Presbyterian Hosp. in City of NY, 61 NY2d 442 [1984]; 117-119 Leasing Corp. v Reliable Wool Stock, LLC, 139 AD3d 420, 421 [2016]).

The matter is remanded for a determination of the use and occupancy and reasonable attorneys' fees due landlord.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: April 27, 2018