| Teri-Nichols Inst. Food Merchants, LLC v Elk Horn HoldingCorp. |
| 2009 NY Slip Op 05635 [64 AD3d 424] |
| July 2, 2009 |
| Appellate Division, First Department |
| Teri-Nichols Institutional Food Merchants, LLC,Respondent-Appellant, v Elk Horn Holding Corp.,Appellant-Respondent. |
—[*1] LeClairRyan, New York (Michael T. Conway of counsel), forrespondent-appellant.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered June 9, 2008, whichdenied defendant landlord's motion for summary judgment dismissing the complaint and on itscounterclaims, and denied plaintiff's cross motion for summary judgment dismissing thecounterclaims, unanimously modified, on the law, defendant's motion for summary judgmentgranted to the extent of dismissing the complaint, declaring the alleged oral lease unenforceable,and awarding defendant $147,919.61 on its second counterclaim, awarding partial summaryjudgment on its first counterclaim and remanding for a hearing to determine fair and reasonablelegal fees due defendant, and otherwise affirmed, without costs.
The parties' sublease expressly made the provisions of the overlease applicable to thesublease. Accordingly, plaintiff's claim that upon expiration of the written sublease there was anoral agreement making it a month-to-month tenant, rather than a holdover tenant, is barred by theexpress terms of the "no oral modification" and "no waiver" clauses in the lease (seeRichardson & Lucas, Inc. v New York Athletic Club of City of N.Y., 304 AD2d 462[2003]). There is no evidence of partial performance that is unequivocally referable to thealleged oral agreement, as plaintiff was in possession pursuant to a sublease that provided for itsholdover stay (see e.g. id.; Peartree Assoc. v Naclerio, 303 AD2d 210 [2003]). Itis of no consequence that defendant billed plaintiff for the expired rent for one month as opposedto the holdover rate in view of the express "no waiver" provision of the lease, which states thatreceipt of a lesser rent shall not constitute a waiver of the landlord's rights (see Elite Gold, Inc. v TT Jewelry OutletCorp., 31 AD3d 338 [2006]).
Contrary to plaintiff's argument, the record reveals that defendant was the owner of thepremises during the relevant period, and thus defendant has standing to enforce the holdoverclause and seek legal fees in accordance with the written sublease. The holdover clause,providing for 1½ times the expired monthly rent for March and April 2006 and three timesthe expired monthly rent for May and June, is enforceable (see e.g. id.; Thirty-ThirdEquities Co. v Americo Group, 294 AD2d 222 [2002]; Federal Realty Ltd. Partnership vChoices Women's Med. Ctr., 289 AD2d 439 [2001]). Therefore, defendant is [*2]entitled to summary judgment on those counterclaims to the extentindicated. Concur—Andrias, J.P., Sweeny, McGuire, Acosta and Richter, JJ.