| Crystal Run Newco, LLC v United Pet Supply, Inc. |
| 2010 NY Slip Op 01230 [70 AD3d 1418] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| Crystal Run Newco, LLC, Respondent-Appellant, v United PetSupply, Inc., Doing Business as The Pet Company,Appellant-Respondent. |
—[*1] Young, Sommer, LLC, Albany (J. Michael Naughton of counsel), forplaintiff-respondent-appellant.
Appeal and cross appeal from an order of the Supreme Court, Onondaga County (Anthony J.Paris, J.), entered September 25, 2008. The order, among other things, denied that part ofplaintiff's motion for summary judgment and denied that part of defendant's cross motion forsummary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting that part of the motion for summary judgment on the first cause of action and asmodified the order is affirmed without costs, and it is further ordered that judgment be entered infavor of plaintiff and against defendant in the amount of $20,472.35.
Memorandum: Plaintiff (hereafter, landlord) commenced this action to recover unpaid rentand accelerated rent pursuant to the terms of its commercial property lease with defendant(hereafter, tenant). The landlord thereafter moved, inter alia, for summary judgment on thecomplaint, and the tenant cross-moved for summary judgment, seeking a determination that thelandlord wrongfully terminated the lease, and the tenant also sought leave to amend the answerto assert counterclaims. Supreme Court denied the landlord's motion and granted that part of thetenant's cross motion for leave to amend the answer.
We conclude that the court erred in denying that part of the landlord's motion for summaryjudgment on the first cause of action, seeking past due rent based on the tenant's breach of thelease. The landlord met its initial burden by submitting evidence that the tenant failed to pay pastdue rent in the amount of $20,472.35 during the time in which the tenant remained in possessionof the premises. The tenant was "obligated to pay rent for as long as [it was] in possession of thepremises inasmuch as [*2]it is well settled that the obligation of acommercial tenant to pay rent is not suspended if the tenant remains in possession of the leasedpremises" (Matter of First Citizens Natl.Bank v Koronowski, 46 AD3d 1474, 1475 [2007] [internal quotation marks andbrackets omitted]). In opposition to that part of the landlord's motion, the tenant failed to presentevidence establishing that it had paid the past due rent in question for the period in which thetenant remained in possession of the premises. The tenant's "general allegations" wereinsufficient to raise an issue of fact to defeat that part of the landlord's motion (Towers Org. vGlockhurst Corp., 160 AD2d 597, 599 [1990]). Thus, the landlord is entitled to summaryjudgment on the first cause of action. We therefore modify the order accordingly, and we directthat judgment be entered in favor of the landlord and against the tenant in the amount of$20,472.35.
We reject the tenant's contention that the notice of default provided by the landlord waslegally insufficient and thus that the tenant does not owe the past due rent in question. "Leaseinterpretation is subject to the same rules of construction as are applicable to other agreements"(Matter of Cale Dev. Co. v Conciliation & Appeals Bd., 94 AD2d 229, 234 [1983],affd 61 NY2d 976 [1984]). "A familiar and eminently sensible proposition of law is that,when parties set down their agreement in a clear, complete document, their writing should as arule be enforced according to its terms. Evidence outside the four corners of the document as towhat was really intended but unstated or misstated is generally inadmissible to add to or vary thewriting" (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). We thus conclude,based on the rules of construction applicable to leases, that the tenant failed to establish that thenotice provided by the landlord was insufficient under the terms of the lease.
We further conclude, however, that there are issues of fact on the record before us whetherthe landlord also breached the lease prior to its termination and whether the acceleration clausein the lease is enforceable (see Benderson v Poss, 142 AD2d 937 [1988]). Thus, thecourt properly determined that summary judgment in favor of either party was inappropriate withrespect to those issues.
We reject the landlord's contention that the court abused its discretion in granting the tenantleave to amend its answer to assert counterclaims. "The decision to allow or disallow theamendment is committed to the court's discretion" (Edenwald Contr. Co. v City of NewYork, 60 NY2d 957, 959 [1983]), and "the resulting determination will not lightly be setaside" (Rose v Velletri, 202 AD2d 566, 567 [1994] [internal quotation marks omitted])."Although it would have been better practice for [the tenant] to have included the proposedamended [answer] with [its] cross motion" (Walker v Pepsico, Inc., 248 AD2d 1015,1015 [1998]), we cannot say on the record before us that the court abused its discretion,particularly in view of the fact that there is no indication that the proposed amendment waswithout merit or would prejudice the landlord.
Finally, there is no merit to the landlord's contention that the failure of the tenant to seek aninjunction in accordance with First Natl. Stores v Yellowstone Shopping Ctr. (21 NY2d630 [1968], rearg denied 22 NY2d 827 [1968]) precludes the tenant from challenging thevalidity of the lease termination. Although the failure to seek an injunction prior to thetermination of the lease removed the ability of the tenant to cure its default, that failure does notpreclude the tenant from asserting a counterclaim against the landlord for breach of contract (see La Lanterna, Inc. v Fareri Enters.,Inc., 37 AD3d 420, 423-424 [2007]). Present—Smith, J.P., Fahey, Carni, Pineand Gorski, JJ.