210 West 29th Street Corp. v. Chohan , 786 N.Y.S.2d 322 ( 2004 )

In an action to recover damages for breach of a commercial lease, the defendant appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Nassau County (Martin, J.), dated May 7, 2003, which, inter alia, granted the plaintiff leave to amend the complaint, and renew its motion for summary judgment, and denied his cross motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action and for leave to amend the answer.

Ordered that the order is affirmed insofar as appealed from, with costs.

Having correctly determined that a claim for accelerated rent is not cognizable in the absence of an acceleration clause (see Beaumont Offset Corp. v Zito, 256 AD2d 372 [1998]), the Supreme Court properly granted the plaintiff landlord leave to amend his complaint to assert a claim for accrued rent and leave to renew his motion for summary judgment. We reject the defendant’s contention that a prior judgment obtained by the plaintiff in summary holdover proceedings for past rent due barred this action, which originally sought the entire accelerated rent, but which now seeks only damages in the form of rental payments for the period after the defendant vacated the premises and before the premises were re-let (see The Marketplace v Smith, 181 Misc 2d 440 [1999]; see also Matter of Bedford Gardens Co. v Silberstein, 269 AD2d 445 [2000]; 207-211 W. 144th St. Tenant Assn. v Cosgrove, 2003 NY Slip Op 51381 [U] [2003]; Rector, Churchwardens & Vestrymen of Trinity Church in City of N.Y. v Chung King House of Metal, 193 Misc 2d 44, 49 [2002]).

The defendant’s remaining contentions are without merit. Santucci, J.P., Adams, Cozier and Rivera, JJ., concur.