| 172 Van Duzer Realty Corp. v Globe Alumni Student AssistanceAssn., Inc. |
| 2013 NY Slip Op 00280 [102 AD3d 543] |
| January 22, 2013 |
| Appellate Division, First Department |
| 172 Van Duzer Realty Corp., Respondent, v GlobeAlumni Student Assistance Association, Inc., et al.,Appellants. |
—[*1] Cox Padmore Skolnik & Shakarchy, LLP, New York (Noah Potter of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Edmead, J.), entered June 20,2011, awarding plaintiff landlord a total amount of $1,488,604.66, and bringing up forreview an order, same court and Justice, entered December 6, 2010, which grantedplaintiff summary judgment on the issue of liability, unanimously affirmed, with costs.
In this action for breach of a commercial lease and enforcement of a guarantee,plaintiff seeks damages in connection with a lease entered into in September 2006, forreal property located in Staten Island, for a term, as extended, of 10 years. On January 30,2008, plaintiff issued defendant-tenant Globe Alumni Student Assistance Association,Inc. a notice to cure violations of the lease. Rather than curing the violations, in February2008, the tenant vacated the premises. Plaintiff then terminated the lease effective as ofMarch 24, 2008.
After obtaining a judgment of possession in the Civil Court, plaintiff brought theinstant action seeking, among other things, the balance of rent due for the remainder ofthe term, which was recoverable as liquidated damages under an acceleration provisionin the lease.
Plaintiff made a prima facie showing of its entitlement to accelerated rent, pursuantto the express terms of the lease, which also provided that the obligation to pay rent wasto continue in the event of termination of the lease (see Ring v Printmaking Workshop, Inc., 70 AD3d 480, 481[1st Dept 2010]).
In opposition, defendants failed to raise a triable issue of fact as to whether theliquidated damages provision was an unenforceable penalty (see Truck Rent-A-Ctr. vPuritan Farms 2nd, 41 NY2d 420, 423-425 [1977]). The doctrine of res judicata doesnot bar plaintiff's recovery under the acceleration provision, as such damages were notrecoverable in the summary [*2]proceeding brought inthe Civil Court (see NY City Civ Ct Act § 204; Ross Realty v V & A Fabricators,Inc., 42 AD3d 246, 249-250 [2d Dept 2007]). Concur—Friedman, J.P.,Renwick, Manzanet-Daniels, Román and Clark, JJ.