ESRT 250 W. 57th St., L.L.C. v. 13D/West 57th LLC , 148 A.D.3d 621 ( 2017 )

ESRT 250 W. 57th St., L.L.C. v 13D/West 57th LLC (2017 NY Slip Op 02390)

ESRT 250 W. 57th St., L.L.C. v 13D/West 57th LLC

2017 NY Slip Op 02390

Decided on March 28, 2017

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 March 28, 2017
Richter, J.P., Mazzarelli, Kahn, Gesmer, JJ.

3558 158006/15

[*1]ESRT 250 West 57th St., L.L.C., Plaintiff-Respondent,

v

13D/West 57th LLC, et al., Defendants-Appellants.



13D/West 57th LLC, Counterclaim Plaintiff-Appellant,

v

ESRT 250 West 57th St., L.L.C., et al., Counterclaim Defendants-Respondents.

Westerman, Ball, Ederer, Miller, Zucker & Sharfstein, LLP, Uniondale (Jeffrey A. Miller of counsel), for appellants.

Sternbach, Lawlor & Rella LLP, New York (Anthony J. Rella of counsel), for respondents.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered March 4, 2016, which, insofar as appealed from as limited by the briefs, granted the motion of plaintiff and counterclaim defendants' to dismiss the first, second and third counterclaims and the fourth, fifth and part of the third affirmative defenses, unanimously affirmed, without costs.

Defendants, a commercial tenant and its principal, asserted counterclaims and affirmative defenses predicated on the violation of the covenant of quiet enjoyment or constructive eviction. Those claims were properly dismissed, as the only harm suffered was by tenant's purported subtenant, which subtenancy was wholly unauthorized, in violation of the lease (see Excel Graphics Tech. v CFG/AGSCB 75 Ninth Ave., 1 AD3d 65, 70 [1st Dept 2003], lv dismissed 2 NY3d 794 [2004]). Tenant cannot recover for interference by landlord with an unlawful subtenancy (cf. 150 Greenway Terrace, LLC v Cullen, 14 Misc 3d 130[A], 2007 NY Slip Op 50020[U] [App Term, 2d Dept 2007]). Defendants' claims are further barred by the clause in the lease that prohibits landlord from being liable for the acts of other tenants (see Alpha Holding Corp. v Brescio, 2009 NY Slip Op 30936[U] [Sup Ct, NY County 2009]).

The counterclaim and affirmative defense based on fraud were also properly dismissed. While landlord allegedly knew that the neighboring unit's marijuana smoking would impair defendants' use of the premises, the landlord made no actionable misstatement, and it had no duty to speak, given the arm's length nature of the

landlord-tenant relationship (see Sehera Food Servs. Inc. v Empire State Bldg. Co. L.L.C., 74 AD3d 542 [1st Dept 2010]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 28, 2017

CLERK