Contractors Consulting Co. v. All Mark Painting Co. ( 1988 )

The plaintiff landlord moved for summary judgment on the first cause of action, which sought $4,500 in rent for the months of December 1986 and January and February 1987 at $1,500 per month, and on the second cause of action, which sought $13,500 for the months of March, April and May 1987 at $4,500 per month. The landlord had obtained a final order of possession and warrant of eviction, but not a money judgment, in an earlier summary proceeding in the Civil Court based on the nonpayment of rent for the three months covered by the first cause of action.

The landlord’s claim for the increased rental of $4,500 per month, effective March 1, 1987, was based on a 30-day notice of increase allegedly served on January 29, 1987, receipt of which the defendant tenant denied. In fact, the only issue raised by the tenant in opposition to the motion for summary judgment was this denial and its assertion that it never agreed to a rent increase to $4,500 per month. In such circumstances, it was error to deny the motion in its entirety. The landlord is clearly entitled to rent at the rate of $1,500 per month for the months of December 1986 and January, February, March, April and May 1987, totaling $9,000. The tenant is liable for May 1987 rent, irrespective of whether it vacated on May 1, as it claims, or May 11, as the landlord alleges. Since an issue of fact exists as to whether a rent increase was in effect for the last three months of the tenant’s occupancy, summary judgment is denied as to that aspect of the second cause of action. Concur — Kupferman, J. P., Sandler, Sullivan and Rosenberger, JJ.