| Disunno v WRH Props., LLC |
| 2012 NY Slip Op 05719 [97 AD3d 780] |
| July 25, 2012 |
| Appellate Division, Second Department |
| Nicole Disunno, Respondent, v WRH Properties, LLC,Appellant. |
—[*1] Michael G. Walsh, Water Mill, N.Y. (Kelly A. Doyle of counsel), for respondent.
In an action, inter alia, to recover damages for breach of a commercial lease, the defendantappeals from an order of the Supreme Court, Suffolk County (Spinner, J.), dated August 1, 2011,which denied its motion, inter alia, pursuant to CPLR 3211 (a) (1) and (7) to dismiss the firstthrough fifth causes of action.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendant's motion which was pursuant to CPLR 3211 (a) (7) to dismiss the thirdcause of action, and substituting therefor a provision granting that branch of the motion; as somodified, the order is affirmed, with costs to the plaintiff.
The plaintiff tenant commenced this action against the defendant landlord, inter alia, torecover damages for breach of a commercial lease.
The Supreme Court should have granted that branch of the defendant's motion which waspursuant to CPLR 3211 (a) (7) to dismiss the third cause of action, which alleges breach of animplied warranty of fitness for commercial purposes. "In the absence of fraud or of a covenant, alessor does not represent that the premises are tenantable and may be used for the purpose forwhich they are apparently intended" (Welson v Neujan Bldg. Corp., 264 NY 303, 305[1934]; see Widmar v Healey, 247 NY 94, 96 [1928]; Edwards v New York &Harlem R.R. Co., 98 NY 245, 247 [1885]). The implied warranty of habitability applies onlyto residential lease space (see Real Property Law § 235-b; Rivera v JRJ Land Prop. Corp., 27AD3d 361, 365 [2006]; Polak v Bush Lbr. Co., 170 AD2d 932 [1991]).
However, the Supreme Court properly denied those branches of the defendant's motionwhich were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the first, second, fourth, and fifthcauses of action. Contrary to the defendant's contention, the complaint sufficiently alleges a causeof action to recover damages for breach of the covenant of quiet enjoyment caused by an actualpartial eviction (see Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 82-84[1970]; 23 E. 10 L.L.C. v Albert Apt.Corp., 91 AD3d 573, 574 [2012]; Second on Second Caf�, Inc. v Hing Sing Trading, Inc., 66 AD3d255, 267-272 [2009]). The defendant's contention that the plaintiff has no claim for damages[*2]for breach of the covenant of quiet enjoyment because theplaintiff's refusal to pay rent constitutes an election of remedies is improperly raised for the firsttime in the defendant's reply brief on the appeal (see Dune Deck Owners Corp. v JJ & P Assoc. Corp., 71 AD3d1075, 1077 [2010]). The complaint's allegations are also sufficient to state causes of actionto recover damages for private nuisance (see Copart Indus. v Consolidated Edison Co. ofN.Y., 41 NY2d 564, 569-571 [1977]) and for breach of paragraphs 25 and 42 (a) of thesubject lease. Further, contrary to the defendant's contention, the terms of the subject lease do notconclusively establish a defense to the asserted claims as a matter of law (see CPLR 3211[a] [1]; Leon v Martinez, 84 NY2d 83, 88 [1994]).
The defendant's remaining contentions are without merit. Skelos, J.P., Balkin, Lott andMiller, JJ., concur.