Broadway 36th Realty, LLC v London

[*1] Broadway 36th Realty, LLC v London 2010 NY Slip Op 52192(U) [29 Misc 3d 1238(A)] Decided on December 14, 2010 Supreme Court, New York County Edmead, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 14, 2010
Supreme Court, New York County

Broadway 36th Realty, LLC, Plaintiff,

against

Zev London, Defendant.



116053/2009



Wayne R. Smith

SMITH & KRANTZ, LLP

Attorneys for Plaintiff

122 East 4Znd Street, Suite 1518

New York, New York 101 68

(212) 661-0279

Richard J. Pllson, Esq.

BERLINER & PILSON

Attorneys for Defendant

80 Cuttermilll Road, Suite 411

Great Neck, New York 11201

(516) 304-5555

Carol Robinson Edmead, J.

In this an action for breach of a guaranty, plaintiff Broadway 36th Realty, LLC ("plaintiff") moves for an order, pursuant to CPLR §3212, granting summary judgment in its favor for $171,026.60, plus attorneys' fees, and dismissing the counterclaim and affirmative defenses of defendant Zev London ("defendant").

Background Facts

In June 2004, defendant, as a principal of Viva Office Park Corporation ("tenant"), executed a personal guaranty (the "Guaranty") in connection with a 10-year commercial lease (the "lease") between the tenant and one of the previous owners of the building at 29 West 36th Street, New York, New York, regarding the fourth floor office space (the "premises"). The Guaranty provided that defendant "absolutely, unconditionally and irrevocably guarantees to Landlord" Tenant's obligations "up to the Surrender Date." Thereafter, in December 2006, the building was conveyed to another owner, who, in May of 2008, sold it to plaintiff, assigning all [*2]of its rights, title and interest under the lease to plaintiff (the "assignment agreement").[FN1]

According to plaintiff, in or about August 2008, the tenant failed to pay its proportionate share of the landlord's costs for the building's facade repairs in the amount of $38,417.95 and thereafter, failed to pay rent from June 2009 through September 2009, while remaining in possession of the premises through September 30, 2009. On August 25, 2009, plaintiff commenced a summary proceeding against the tenant requesting eviction of the tenant and judgment in the amount of $77,558.68 for unpaid rent. On September 30, 2009, the tenant abandoned the premises without making any of the owed payments. On November 4, 2009, the Civil Court (Joan M. Kenney, J.) granted a default judgment against the tenant for $77,558.68 ("the Civil Court judgment"). The overdue rent payments continued to accrue pursuant to the lease terms, and on or about November 10, 2009, plaintiff commenced this suit [FN2] against defendant, alleging in the first cause of action for breach of the Guaranty that defendant failed to pay the rent due through November 30, 2009 in the amount of $115,072.20 and the amounts of rent which have continued to accrue since that date. The second cause of action is for reasonable attorneys' fees, costs and expenses, pursuant to the lease and the Guaranty.

In his answer, defendant interposed affirmative defenses of a disputed amount owed to plaintiff, lack of standing and counterclaimed for constructive eviction.[FN3]

Plaintiff now moves for summary judgment against defendant as to liability and damages, arguing that it established a prima facie for enforcement of the Guaranty. In support, plaintiff submits an affidavit of its principal, Saul Tawil ("Tawil Affidavit"), the Guaranty, the lease dated June 2004, rent invoices, the assignment agreement, Notice and Petition for summary proceeding, the Civil Court judgment and subleases of the subtenants. Plaintiff alleges that, as of May 2010, defendant owed plaintiff $171,026.60 which included unpaid base rent and additional rent under the lease, excluding legal fees and the amount of mitigated damages.

In arguing for dismissal of defendant's affirmative defenses and counterclaim, plaintiff asserts that they are meritless and conclusory, and ignore the plain language of the Guaranty, the lease and the assignment agreement. Specifically, the first counterclaim/defense of constructive eviction is barred by res judicata since defendant, as a principal of the tenant, is bound by the Civil Court judgment. Defendant was served with the notice of the petition and the petition in the summary proceeding. Thus, defendant is precluded from asserting any claim or defense that the tenant could have asserted in the Civil Court proceeding. And, pursuant to the Guaranty, defendant as the Guarantor waived all defenses available to the tenant under the lease.

Further, defendant's counterclaim for constructive eviction should be dismissed because it could be asserted only by the tenant, the lease terms did not require plaintiff to provide freight elevator service and the tenant cannot claim constructive eviction since it failed to pay rent.

Defendant opposes the motion, arguing that he is not obligated under the Guaranty for [*3]rent payments after the surrender of the premises by the tenant because (1) by its terms, the Guaranty is not continuing and thus, does not bind defendant after the surrender of the premises and (2) the tenant's constructive eviction defense relieves defendant from his obligations under the Guaranty.

Defendant states in his Affidavit (the "London Affidavit")[FN4] that the language of the Guaranty is ambiguous as to the meaning of "surrender" and should be construed against plaintiff and/or his predecessor and in favor of defendant, who was not represented by an attorney at the time he signed the Guaranty. The tenant was forced to surrender the premises when unable to resolve a dispute over a $38,417.95 charge for certain facade repairs performed by the previous landlord, plaintiff's predecessor. Defendant offered to pay the base rent owed by the tenant at the time of the surrender on September 30, 2009, but plaintiff refused to accept it without the payment of the previously owed amount of $38,417.95 for the facade repairs.

Further, defendant's constructive eviction defense precludes plaintiff from recovery of the post-vacatur rent charges since plaintiff failed to provide the freight elevator services to the tenant pursuant to paragraph 31 of the lease, making it difficult and inconvenient for the sub-tenants of the tenant to conduct their business. Defendant, as the guarantor, may assert "any defense or counterclaim that were available to its principal, tenant." Thus, the tenant's constructive eviction counterclaim raises a factual issue as to termination of defendant's obligations under the Guaranty.

Defendant further argues that res judicata does not bar defendant's constructive eviction defense because plaintiff improperly obtained the default judgment in the Civil Court. After the tenant appeared in the Civil Court proceeding by interposing its Answer, counsel for the tenant and plaintiff entered into a stipulation for surrendering the possession of the premises and plaintiff's counsel agreed to submit it on the return date in full settlement of the Civil Court proceeding. When the tenant did not appear in the Civil Court on the return date, plaintiff's counsel obtained a default judgment against the tenant, without subsequently serving it on the tenant. And in any event, the tenant could not have asserted a counterclaim against plaintiff (the landlord) because of the waiver of that right pursuant to the lease.

In addition, plaintiff did not properly serve defendant with its answer to defendant's counterclaim, since it used the wrong postal code, and defendant only became aware of it in connection with the instant motion papers. Thus, the issue is not properly joined for the purposes of this motion and should be denied as premature.

Defendant also cross-moves to amend his answer to interpose the defense of partial actual eviction, arguing that it would serve as a complete defense to the rent arrears which were alleged in the summary proceeding or, as a partial defense to the post-surrender charges.

In response, plaintiff argues that, pursuant to the Guaranty, defendant waived his right to assert any defense available to the tenant. As to the disputed additional charge of $38,417.95, this charge represented 8.33% share of the $461,199.90 incurred for repairs required under New York City Local Law §11 of 1998 and pursuant to Article 23 of the lease Rider. The invoices for the work performed, attached as exhibits to plaintiff's reply papers, show the costs of the facade repairs. And, since neither the tenant nor defendant moved to vacate the money judgment [*4]entered in the Civil Court, defendant cannot now dispute this additional charge.

Further, defendant abandoned his second affirmative defense of lack of standing by failing to address it in his opposition papers, and his defense of constructive eviction is barred both by res judicata and collateral estoppel.[FN5] Defendant admitted in his Affidavit that the tenant vacated the premises not because of the non-working freight elevator but because of the dispute about the additional $38,417.95 charges. In addition, the tenant did not abandon the premises within a reasonable time so as to establish constructive eviction claim; the tenant complained that the elevator was shut down since late 2008, but did not vacate the premises until September 30, 2009, and thus, waived it.

Plaintiff further argues that defendant did not seek to vacate the judgment since it was entered more than one year ago. The purpose of the October 2, 2009 stipulation was to memorialize that the tenant vacated the premises on September 30, 2009 and not for any payment settlement purposes.[FN6] Defendant was aware of the Civil Court summary proceeding since plaintiff served him with a copy of the Notice and the Petition. Further, even assuming that defendant's counsel did not receive a copy of plaintiff's reply to defendant's counterclaim, the motion is not premature. Plaintiff included the reply to the counterclaim in the instant motion papers (exhibit C). Thus, defendant had an opportunity to raise an issue of fact before the court's determination of this motion.

Finally, defendant's cross-motion to amend should be denied since the claim of partial actual eviction lacks merit. The tenant was not denied access to the premises and the substitute passenger elevator provided sufficient freight services.

Discussion [FN7]

To obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor (CPLR § 3212 [b]), and to demonstrate, by advancing sufficient "evidentiary proof in admissible form," the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual [*5]issue requiring a trial of the action (Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]; Zuckerman v City of New York, supra , 49 NY2d at 560, 562).

On a motion for summary judgment to enforce a written guaranty, "the creditor needs to prove an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty (Davimos v Halle, 35 AD3d 270, 826 NYS2d 61[1st Dept 2006], citing City of New York v Clarose Cinema Corp., 256 AD2d 69, 681 NYS2d 251 [1st Dept 1998]).

Plaintiff has established the prima facie elements necessary to enforce defendant's written Guaranty. Plaintiff submitted to the court the Guaranty dated June 23, 2004, executed by defendant, which provides that defendant "absolutely, unconditionally and irrevocably guarantees to Landlord all Base Annual Rent and Additional Rent and other charges payable by Tenant under the Lease [ . . . ] up to the Surrender Date" (exhibit E).

Defendant does not dispute that he executed the Guaranty (see London Affidavit). The Affidavit of plaintiff's principal ("Tawil Affidavit"), and the documentary evidence before the court, have established that, for the period from August 2008 through May 2010, defendant owes plaintiff $171,026.60, which includes unpaid base rent and additional rent under the lease, excluding $4,490.00 in mitigated damages (re-letting the portion of the premises) and legal fees. The Tawil Affidavit and the documentary evidence also establish that the tenant failed to pay plaintiff pursuant to the terms of the lease and defendant failed to pay pursuant to the terms of the Guaranty.

Having established a prima facie case for enforcement of the written Guaranty, the burden shifts to defendant to establish by admissible evidence the existence of a triable issue of fact (Bank Leumi Trust Co. v Rattet & Liebman, 182 AD2d 541, 582 NYS 707 [1st Dept 1992]).

Defendant failed to raise an issue of fact requiring a trial of this action.

Defendant does not dispute his base rent payment obligations under the Guaranty from August 2008 through the end of September 2009, when the tenant vacated the premises. Instead, he denies liability for any rent due on the remainder of the lease.[FN8]

Specifically, defendant argues that the language of the Guaranty is ambiguous and the court should construe it as terminating defendant's obligations merely upon the tenant's vacating the premises. However, it is well-settled that "on a motion for summary judgment, the construction of an unambiguous contract is a question of law for the court to pass on, and [ . . . ] circumstances extrinsic to the agreement or varying interpretations of the contract provisions will not be considered, where [ . . . ] the intention of the parties can be gathered from the instrument itself" (Maysek & Moran, Inc. v S.G. Warburg & Co., Inc., 284 AD2d 203, 204, 726 NYS2d 546 [1st Dept 2001]).

Here, the Guaranty states in pertinent part: A. "[the Guarantor] absolutely, unconditionally and irrevocably guarantees to Landlord all Base Annual Rent and Additional Rent and other charges payable by Tenant

under the Lease [ . . . ] up to the Surrender Date."

The "Surrender Date" in turn, is defined in the same paragraph as: [*6] "the date that Tenant shall have performed all of the following: (a) vacated and surrendered the demised premises to Landlord [ . . . ] free of all subleases or licensees and in broom clean condition (b) delivered the keys to the doors to the demised premises to Landlord, and (c) paid all sums due and payable under the Lease as Base Annual Rent or Additional Rent or other such charges to Landlord up until the date of (a) and (b) above.

(Emphasis added).

The Guaranty clearly and unambiguously requires that, inter alia, all sums due and payable be satisfied in order the for Surrender Date to take effect. Here, defendant failed to pay rent owed by the tenant at the time he vacated the premises. Thus, because the surrender, i.e., the sums due, were not paid, defendant remains liable for the rent payments pursuant to the terms of the lease, which holds the defaulting tenant responsible for damages incurred by landlord for the balance of the lease term,[FN9] i.e., until June 30, 2014 (see, The Gallery at Fulton Street LLC v Wendnew LLC, 30 AD3d 221, 817 NYS2d 237 [1st Dept 2006][although the termination ends the landlord-tenant relationship, the parties clearly contracted to make the defaulting tenant liable for rent after such termination]).

Constructive Eviction

Defendant's next argument, that he is not liable under the Guaranty because of the tenant's purported constructive eviction defense,[FN10] is unavailing for several reasons.

At the outset, defendant's defense of constructive eviction is barred by the doctrine of res judicata because the tenant failed to assert this defense in the Civil Court proceeding (see Gallery at Fulton Street, LLC v Wendnew LLC, supra [A default judgment in a summary proceeding for nonpayment of rent held conclusive between the parties as to any facts alleged in the petition or affidavit that were required to be alleged as a basis for the proceeding]). The Civil Court awarded plaintiff the judgment of possession and a money judgment based on the allegations in plaintiff's petition. While tenant, by the lease terms, waived his right to interpose a counterclaim of constructive eviction, the tenant could have raised this issue as an affirmative defense in the summary proceeding, but failed to do so. Moreover, not only did the tenant fail to raise the constructive eviction defense in the previous proceeding, but it entered into a stipulation with plaintiff for surrender of possession of the premises effective September 29, 2009 (exhibit G toreply).[FN11] Thus, the tenant is bound by the Civil Court judgment and cannot assert constructive eviction at this juncture. [*7]

Likewise, defendant, as the tenant's principal, is precluded from raising this defense since "a judgment in a prior action is binding not only on the parties to that action, but on those in privity with them" (see, Green v Santa Fe Indus., 70 NY2d 244, 519 NYS2d 793 [1987]; U.S. Securities and Futures Corp. v Irvine, 2002 WL 34191506 [SDNY 2002] [where the principal of a corporation allows a lawsuit against that corporation to go into default, the principal may not later avoid the consequences of that default]; Sterling Doubledav Enterprises L.P. v Marro 238 AD2d at 503 [Individual corporate defendants, who had control over the corporation, had an opportunity to participate in the litigation of the case instead of permitting the entering of the default judgment, and thus, should reasonably have expected that they might be held personally accountable for the corporation's obligations in the future]). Here, defendant does not dispute that he is the principal of the tenant, and thus, is in privity with the tenant. As such, he is precluded from raising the defense of constructive eviction against plaintiff.

In any event, by the express language of the Guaranty, the parties agreed that "Guarantor waives any and all defenses available to tenant under the Lease"(exhibit E).

Furthermore, "[t]o be an eviction, constructive or actual, there must be a wrongful act by the landlord which deprives the tenant of the beneficial enjoyment or actual possession of the demised premises . [ . . . ] Of course, the tenant must have been deprived of something to which he was entitled under or by virtue of the lease" (Barash v Pennsylvania Terminal Real Estate Corp., 26 NY2d 77, 308 NYS2d 649 [1970]).

Here, defendant failed to show that the tenant was deprived of any such right, as the lease terms do not require landlord to provide freight elevator service and there is no evidence that freight elevator service was necessary for the tenant to operate its business during that time period or that it lost any expected sales, revenue or customers (Pacific Coast Silks, LLC v 247 Realty, LLC, 76 AD3d 167, 904 NYS2d 407 [1st Dept 2010]). And, according to the Tawil Affidavit, one of the passenger elevators was dedicated for deliveries at the time when the freight elevator was not working. Thus, notwithstanding the alleged inconvenience, defendant failed to show that the lack of the freight elevator service deprived the tenant of the beneficial enjoyment or actual possession of the demised premises.[FN12] Accordingly, affirmative defense and counterclaim for constructive eviction, are dismissed.

Similarly, the court finds that defendant's remaining affirmative defenses also lack merit. As to plaintiff's lack of standing to assert the claim for breach of the Guaranty against defendant, the evidence before the court established that, pursuant to the assignment agreement, dated May 15, 2008, plaintiff's predecessor assigned "all of its right, title and interest" as the landlord under the lease to plaintiff (exhibit G). And, based on the express language of the Guaranty, which provides that "[a]ll terms and provisions herein shall inure to the benefit of the assigns and successors of Landlord," defendant's obligations run to the benefit of plaintiff as the successor to the interest of the original landlord of the lease. Consequently, plaintiff has standing to assert the claim for breach of the Guaranty against defendant, including for the additional charge of [*8]$38,417.95 for the facade repairs.[FN13]

Based on the above, the defense of "disputed amount"similarly fails. As the court previously stated, based on the plain language of the lease and the Guaranty, defendant is liable for the rent amounts accruing after the tenant vacated the premises on September 30, 2009.

Accordingly, defendant's affirmative defenses are insufficient to raise a triable issue of fact as to whether the surrender of the premises by the tenant without paying the amounts owed, released defendant from his obligation under the Guaranty for the period from August 2008 through the remainder of the lease term.

Cross-Motion to Amend

It is well settled that leave to amend an answer pursuant to CLR §3025(b) should be freely granted provided there is no prejudice to the nonmoving party (Eighth Ave. Garage Corp. v H.K.L. Realty Corp., 60 AD3d 404, 405 [1st Dept 2009]). "[A] motion for leave to amend a pleading must be supported by an affidavit of merits and evidentiary proof that could be considered upon a motion for summary judgement" (Zaid Theatre Corp. v Sona Realty Co., 18 AD3d 352, 355 [1st Dept 2005]). However, a proposed pleading that fails to state a cause of action or is plainly lacking in merit will not be permitted (Eighth Ave. Garage Corp. v H.K.L. Realty Corp.; Hynes v Start Elevator, Inc., 2 AD3d 178, 769 NYS2d 504 [1st Dept 2003]).

Here, defendant's proposed amendment to add a defense of partial actual eviction plainly lacks merit. While, "[t]he right to use an expected and usual means of ingress and egress is an appurtenance, the denial of which may constitute a partial actual eviction" (Broadway-Spring St. Corp. v Berens Export Corp., 12 Misc 2d 460, 465, 171 NYS2d 342 [1958]), here, the record is devoid of any evidence that the non-working freight elevator deprived the tenant of "the means of ingress or digress." Neither did defendant submit any evidentiary proof that could be considered upon a motion for summary judgement that the use of the elevator by the tenant was "reasonably necessary and essential to the beneficial enjoyment of the demised premises," interference with which could constitute an actual partial eviction (Broadway-Spring St. Corp. v Berens Export Corp., 12 Misc 2d 460, supra ). Alternatively, plaintiff showed that one of the passenger elevators was designated as a substitute freight elevator to compensate for the tenant's inconvenience.

The only case relied on by defendant, Lawrence v Edwin A. Denham Co. (58 Misc 543,109 NYS 752 [Sup Ct, New York County, Appellate Term 1908]), is distinguishable because, unlike in Lawrence, where "upon many occasions [ . . . ], the tenant was deprived of entrance to the building by the landlord," in this case, there is no evidence that the tenant was denied access to the premises, and thus, there was no actual partial eviction (Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assoc., 240 AD2d 161, 658 NYS2d 272 [1st Dept 1997][since the alleged interference with plaintiff's ingress and egress never resulted in denial of access, there was no actual partial eviction, and plaintiff's obligation to pay rent was never suspended]). Thus, the cross-motion to amend is denied.

Accordingly, plaintiff has established as a matter of law its entitlement to summary judgment as to liability and, based on the ample evidence presented, its entitlement to damages in the amount of $171,026.60 as of May 2010, together with all unpaid sums due (excluding legal [*9]fees and mitigated damages) pursuant to the lease and the Guaranty, up to the date of this judgment. In addition, pursuant to the express provisions of the lease and the Guaranty, plaintiff is entitled to reasonable attorneys' fees to be determined at a hearing.

Conclusion

Based on the foregoing, it is hereby

ORDERED that the motion of the plaintiff Broadway 36th Realty, LLC, pursuant to CPLR §3212 for an order granting summary judgment in its favor against defendant Zev London as to liability and damages in the amount of $171,026.60 is granted; and it is further

ORDERED that plaintiff's claim for reasonable attorneys' fees is hereby severed and referred to the Special Referee to hear and determine (CPLR 4317 [b]) (see Keeney v Keeney, 297 AD2d 606 [1st Dept 2002]) the reasonable amount of the attorneys' fees that is due to the plaintiff from defendant; and it is further

ORDERED that counsel for the plaintiff shall, within 30 days from the date of this order, serve a copy of this order with notice of entry, together with a completed Information Sheet (which can be accessed at the "References" link under "Courthouse Procedures" on the court's website at www.nycourts.gov/supctmanh), upon the Special Referee Clerk in the Motion Support Office in Rm. 119 at 60 Centre Street, who is directed to place this matter on the calendar of the Special Referee's Part (Part 50 R) for the earliest convenient date; and it is further

ORDERED that the defendant's counterclaim and all affirmative defenses are dismissed; and it is further

ORDERED that the defendant's cross-motion to amend his answer is denied; and it is further

ORDERED that the Clerk may enter judgment in favor of plaintiff Broadway 36th Realty, LLC, and against defendant Zev London in the sum of $171,026.60, plus costs and disbursements in the amount of _________________ to be calculated by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that plaintiff shall serve a copy of this order with notice of entry upon defendant within 20 days of entry.

This constitutes the decision and order of the Court.

Dated: December 14, 2010____________________________

Hon. Carol Robinson Edmead, J.S.C. Footnotes

Footnote 1: See the Assignment and Assumption of Leases agreement between 29 West 36th Street, LLC, as assignor, and Broadway 36th Realty LLC, as assignee, dated May 15, 2008 (exhibit G).

Footnote 2: According to plaintiff, it attempted to mitigate damages by re-letting portions of the vacant space to two other tenants, collecting the rent payments in the amount of $4,490.

Footnote 3: The court notes that defendant's third affirmative defense for constructive eviction is also entitled "First counterclaim."

Footnote 4: The court notes that, in his Affidavit, defendant appears to identify himself with the tenant by stating, for instance: "I would rent the space and build out an office park" and "I built out the unimproved space for use as an office park" (London Affidavit, ¶¶ 3-4).

Footnote 5: The court notes that to the extent that plaintiff did not assert a collateral estoppel defense to the counterclaim in its moving papers, the court disregards this argument in determining this motion.

Footnote 6: The court's record contains the stipulation, dated October 2, 2009, which states: "IT IS HEREBY STIPULATED AND AGREED, by and between the parties and their attorneys, as follows: Respondent Viva Office Park Corp. a/k/a Viva Office Park, Inc., by its counsel below, hereby represents and confirms that it surrendered possession of the premises located at 29 West 36th Street, Entire 4th Floor, New York, New York, the premises that are the subject of this proceeding, to Petitioner effective September 29, 2009" (exhibit G to reply and exhibit D to London Affidavit).

Footnote 7: Contrary to defendant's assertion, that defendant's counsel had not received a copy of plaintiff's reply to defendant's counterclaim (claiming a postal code error) does not render the instant motion premature under the circumstances. Defendant was afforded the opportunity to raise all triable issues of fact. Thus, the prematurity of plaintiffs' motion is a mere technical error (Miller v Nationwide Mut. Fire Ins. Co., 92 AD2d 723, 461 NYS2d 128 [4th Dept 1983]; Duell v Hancock, 83 AD2d 762, 763 [4th Dept 1981] [the fact that plaintiff moved for partial summary judgment before issue was joined was not procedurally improper since the answer was served while the motion was pending before the court]).

Footnote 8: The court notes that defendant also disputes the amount of $38,417.95 in additional rent assessed by plaintiff's predecessor. This issue will be addressed later in this decision.

Footnote 9: Article 18 of the lease provides that upon "default, reentry, expiration and/or dispossess by summary proceedings or otherwise, the Tenant continues to be liable for damages measured by any deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account of the subsequent lease or leases of the demised premises for each month of the period which would otherwise have

Footnote 9 contd.

constituted the balance of the term of this lease" (exhibit D to motion).

Footnote 10: As indicated, defendant's asserted constructive eviction defense is also the counter-claim asserted in defendant's answer to the complaint.

Footnote 11: Contrary to defendant's assertion, the record does not contain any evidence that plaintiff's counsel agreed to submit the October 2, 2009 stipulation "on the return date in full settlement of the landlord-tenant case

pending in the Civil Court."

Footnote 12: The court notes that defendant's claim of constructive eviction is contrary to his assertion that the tenant was forced to surrender the premises because he was unable to resolve a dispute about the charge of $38,417.95 for certain facade repairs (see London Affidavit).

Footnote 13: The record shows that in support of its reply papers, plaintiff submitted a letter from Winker Realty Company (apparently the managing agent of the landlord), dated August 1, 2008, which informs the tenant of the nature of the repairs, the amount of total charges of $461,199.90 and the tenant's share of 8.33% ($38,417.95).