Zobe, L.L.C. v. Caravello ( 2002 )

—Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered March 20, 2001, which, inter alia, granted defendant’s motion for summary judgment dismissing the complaint and amended complaint, while simultaneously ordering that defendant was obligated to the plaintiff to the extent that there was any outstanding rent due for the period up to October 1, 1999, unanimously modified, on the law, to vacate that portion of the order directing that defendant is obligated for rent due for the period up to October 1, 1999, and otherwise affirmed, without costs.

Plaintiff landlord sues defendant upon defendant’s guarantee of the lease obligations of plaintiff’s commercial tenant. The grant of summary judgment dismissing the action was proper, since the evidence of record establishes that defendant’s obligations as guarantor had been satisfied, the rent due under the lease having been paid through the date upon which the tenant vacated the demised premises. Although plaintiff maintains that the tenant, notwithstanding its purported surrender, did not actually vacate the premises, and thus that the obligation to pay rent pursuant to the subject lease persisted and has resulted in arrearages, the vague and inconsequential affidavit offered by plaintiff is insufficient to raise a triable issue as to whether the tenant did, in fact, remain on the premises subsequent to the date on which the evidence shows its surrender to have occurred. We modify only to vacate that portion of the appealed order holding defendant responsible for any outstanding rent due through October 1, 1999, since that part of the order is inconsistent with the grant of summary judgment dismissing the complaint, which, as noted, we find to have been proper. Concur—Nardelli, J.P., Mazzarelli, Buckley, Ellerin and Lerner, JJ.