| 225 E. 64th St., LLC v Janet H. Prystowsky, M.D. P.C. |
| 2012 NY Slip Op 04829 [96 AD3d 536] |
| June 14, 2012 |
| Appellate Division, First Department |
| 225 East 64th Street, LLC, Respondent-Appellant, v JanetH. Prystowsky, M.D. P.C., Defendant/Third-Party Plaintiff-Appellant-Respondent. NoyackMedical Partners LLC et al., Third-Party Defendants-Respondents. |
—[*1] Andrew Greene & Associates, P.C., White Plains (Paul T. Vink of counsel), forrespondent-appellant and respondents.
Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered April 12, 2011,which, insofar as appealed from as limited by the briefs, granted so much of plaintiff's motion forsummary judgment as sought to dismiss defendant's affirmative defenses, counterclaims andthird-party claims of constructive eviction due to an alleged fire code violation and due toplaintiff's failure to provide proper air-conditioning and ventilation during a roof repair to theextent defendant seeks to recover for the period following the completion of the repair, anddefendant's third-party claims for fraud and nuisance, and denied so much of plaintiff's motion assought summary judgment on its claim for unpaid rent, and granted defendant's motion forsummary judgment on its eighth affirmative defense and first counterclaim to the extent theyallege constructive eviction due to plaintiff's failure to provide proper air-conditioning andventilation during the aforesaid roof repair, on its counterclaim for breach of the covenant ofquiet enjoyment, and on its counterclaim for the return of its security deposit, unanimouslymodified, on the law, to grant plaintiff's motion as to defendant's affirmative defense of accordand satisfaction, and otherwise affirmed, without costs.
Defendant was prevented from using the demised premises, which it leased from plaintiff,for most of the period during which the owner of the building performed repairs to the area of theroof directly above and adjacent to those premises. Although plaintiff assured defendant that itsdermatological practice would not be disturbed by the roof repair, the demised premises becameunusable due, in part, to the poor air quality, and when plaintiff's attempts to resolve the problemfailed, defendant was forced to find another location in which to operate a portion of its practice.Since plaintiff failed to meet its responsibility for supplying defendant with air-conditioning and[*2]proper ventilation, defendant is entitled to summary judgmenton its claim of constructive eviction during the approximately one-month period in which theroof repairs were performed (see PacificCoast Silks, LLC v 247 Realty, LLC, 76 AD3d 167, 172 [2010], citing Barash vPennsylvania Term. Real Estate Corp., 26 NY2d 77, 83 [1970]).
Defendant's claim of constructive eviction after the roof repair had been completed, however,is defeated by the undisputed facts that defendant retook possession of the demised premises,which had been fully restored, and remained therein for eight months (see Pacific CoastSilks, 76 AD3d at 172).
Defendant's claims of a fire code violation by plaintiff were both conclusory and basedentirely upon hearsay.
Defendant's fraud claim was unsupported by any proof that the statement it allegedly reliedupon was false when made (seeEurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]).
Defendant's nuisance claim was unsupported by any proof that plaintiff created thecomplained-of nuisance.
Defendant is entitled to the return of its security deposit, with interest from the date of theinception of the lease, because plaintiff failed to prove that it did not commingle the securitydeposit with its own funds (see TappanGolf Dr. Range, Inc. v Tappan Prop., Inc., 68 AD3d 440, 441 [2009]).
Defendant's affirmative defense of accord and satisfaction should be dismissed because thelease precluded partial payments in settlement of unpaid rent. The lease also precluded waiver ofany of its terms absent a writing by plaintiff.
We have considered the parties' remaining arguments for affirmative relief and find themunavailing. Concur—Andrias, J.P., Friedman, Sweeny, Manzanet-Daniels andRomán, JJ.