501 Fifth Ave. Co., LLC v. Aslam , 25 N.Y.S.3d 180 ( 2016 )

501 Fifth Ave. Co., LLC v Aslam (2016 NY Slip Op 01139)

501 Fifth Ave. Co., LLC v Aslam

2016 NY Slip Op 01139

Decided on February 16, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 16, 2016
Mazzarelli, J.P., Friedman, Sweeny, Manzanet-Daniels, JJ.

154552/13 -258 257 256

[*1]501 Fifth Avenue Company, LLC, Plaintiff-Appellant,

v

Mohammad Aslam, Defendant-Respondent.

Belkin Burden Wenig & Goldman, LLP, New York (David R. Brand of counsel), for appellant.

Judgment, Supreme Court, New York County (Manuel J. Mendez, J.), entered May 12, 2015, awarding plaintiff the principal sum of $9,542.46 against defendant, unanimously reversed, on the law, without costs, and plaintiff awarded $71,542.46, plus statutory interest to be recalculated upon remand. Appeals from orders of the same court (Ira Gammerman, J.H.O., and Manual J. Mendez, J.), entered February 5, 2015, and March 16, 2015, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

By the clear and unambiguous terms of the commercial lease and the unconditional guaranty of the tenant's obligations under the lease, plaintiff landlord was entitled to recover from defendant guarantor, as demanded, the full amount of the accrued pre-vacatur arrears, i.e., without a setoff in the amount of the tenant's security deposit. Plaintiff had a right under the lease to determine when and how the security deposit would be applied towards the tenant's outstanding lease obligations, and it advised the court that it intended to use the security deposit to cover post-vacatur damages, because defendant's guaranty only covered the tenant's lease obligations until the tenant vacated the premises.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 16, 2016

CLERK