230 Park Avenue Holdco, LLC v. Kurzman Karelsen & Frank, LLP , 2 N.Y.S.3d 433 ( 2015 )

Order, Supreme Court, New York County (Ellen Coin, J.), entered May 6, 2013, which, inter alia, denied that part of plaintiffs motion for summary judgment seeking dismissal of the affirmative defense of breach of a stipulation, and granted that part of the motion seeking dismissal of the affirmative defense of surrender, affirmed, without costs.

The motion court properly found that the surrender defense was barred by the lease provision requiring a surrender and any waiver or modification of the lease to be in writing and further providing that delivery of the keys to the landlord shall not constitute a surrender.

The motion court also correctly denied plaintiff, the landlord’s successor in interest, summary judgment dismissing the third affirmative defense asserting that plaintiff breached a stipulation of settlement. Following a holdover proceeding brought by plaintiff to recover possession of the subject premises, the parties entered into a stipulation, dated August 22, 2011, in which defendant tenant consented to the entry of a final judgment of possession in favor of plaintiff and plaintiff reclaimed the premises. The stipulation expressly provides, however, that it does not constitute a surrender of the lease “by operation of law,” and the lease forbids a surrender of the lease, except in writing. Nothing in the stipulation releases defendant from any further rent obligation under the terms of the lease, which was not due to expire before December 31, 2012. The parties reserved their rights, claims and defenses, including those available under the lease.

Although the stipulation prohibits defendant from subletting or assigning any of its rights or interests under the lease, it also provides that defendant is not prohibited “from locating and/or offering [plaintiff] a potential tenant for the Premises.” As the motion court held, the import of this provision was clearly to provide defendant with an opportunity to cover all or some of the damages that plaintiff is claiming are due under the lease. Otherwise the provision would have no meaning.

There are triable issues of fact as to whether plaintiff improperly interfered with defendant’s efforts, in violation of the stipulation, to find a tenant, which would, in turn, affect defendant’s liability for future rent. Although plaintiff claims that it only contacted defendant’s broker to have the subleasing listing removed, defendant claims that plaintiff interfered with defendant’s right to list the space at all. There is evidence that plaintiff contacted defendant’s broker directly in order to have the listing removed, and email correspondence between the parties shows that plaintiff did not make the space available for rent after defendant had vacated. The advertising flyer describing the broker retained by defendant as the “sublease agent” and offering the premises for sublet bears the date of July 2011, and there is evidence that it was approved by plaintiff and circulated prior to the date of the parties’ August 22, 2011 stipulation. This circular does not satisfy plaintiff’s prima facie burden on its motion of showing that its direct contact with the broker on September 15, 2011 was justified.

Concur — ManzanetDaniels, Feinman and Gische, JJ.