| Hudson Towers Hous. Co., Inc. v VIP Yacht Cruises, Inc. |
| 2009 NY Slip Op 04278 [63 AD3d 413] |
| June 2, 2009 |
| Appellate Division, First Department |
| Hudson Towers Housing Co., Inc., Appellant, v VIP YachtCruises, Inc., Respondent. |
—[*1]
Order, Supreme Court, New York County (Karen S. Smith, J.), entered July 1, 2005, whichdenied plaintiff's motion for summary judgment, unanimously affirmed, without costs.
We disagree with the motion court's finding that summary judgment is precluded by an issueof fact whether there was a surrender of the premises by defendant tenant and acceptance byplaintiff landlord. Article 25 of the parties' lease specifically states that there is no surrender ofthe premises without an agreement accepting such surrender in writing signed by the landlord. Itis undisputed that there was no written agreement signed by the landlord accepting any purportedsurrender of the premises by the tenant at any time before the parties entered into a stipulation ofsettlement that resolved a summary nonpayment proceeding brought by the landlord in CivilCourt. Nor can there be any claim by the tenant of constructive eviction. Article 9 of the leaseexplicitly states that the tenant waived the provisions of Real Property Law § 227, whichpermits a tenant to quit leased premises that are rendered untenable or unfit for occupancy andconsequently to be relieved of its obligation to pay rent (see Milltown Park v American Felt& Filter Co., 180 AD2d 235, 237 [1992]; Trinity Ctr., LLC v Wall St. Correspondents, Inc., 4 Misc 3d1026[A], 2004 NY Slip Op 51060[U], *4 [2004]). Article 9 requires the tenant to give thelandlord notice of any damage to the premises. The landlord is then required to make repairs.The tenant's liability for rent is abated during the period in which the repairs are being made andis resumed five days after written notice by the landlord that the premises are substantially readyfor the tenant's occupancy.
We also disagree with the motion court that the parties' stipulation of settlement wasambiguous. The plain meaning of the stipulation is that the parties were settling the issue ofpossession of the leased premises by the tenant's surrender thereof and that the parties wereexpressly reserving their right to pursue, at a later time, in a different proceeding, any and allother claims they may have had arising out of the lease or the tenancy. Even assuming that thepreprinted clause in the court form stipulation contradicted the handwritten portions, thehandwritten portions would prevail (Joseph Francese, Inc. v Enlarged City School Dist. ofTroy, 263 AD2d 582, 584 [1999], revd on other grounds 95 NY2d 59 [2000]).
The conflicting affidavits submitted by the parties, however, raise issues of fact concerningthe impact of the September 11, 2001 terrorist attack on the tenant's ability to reenter and use thepremises and the extent, if any, to which the tenant was relieved of its obligation to [*2]pay rent under article 9 of the lease. While the tenant did not givethe landlord written notice of a defective condition in the leased premises, given the building'sclose proximity to the World Trade Center and the catastrophic events of September 11, 2001,the landlord had actual knowledge of adverse conditions affecting the habitability of thepremises. Concur—Mazzarelli, J.P., Andrias, Friedman, Renwick and Freedman, JJ.