28 Misc. 2d 33 | N.Y. Sup. Ct. | 1960
Motion by plaintiff for summary judgment. Plaintiff and defendant entered into a lease for a period of five years from May 1,1957, at a rental of $8,200 per annum, payable in equal monthly installments. Defendant defaulted in payment of the August, 1957, rent and a final order was granted in a summary proceeding for nonpayment thereof. Defendant vacated the premises and has paid no rent subsequent to such removal. The premises were vacant until on or about April 1, 1959, when plaintiff entered into a new lease with another tenant for a term of five years at a rental of $7,500 per annum. The action seeks to recover the difference between the rent covenanted to be paid by defendant to the end of her term and that paid or to be paid by the present tenant to the end of defendant’s term. The answer contains a general denial and two affirmative defenses that defendant refused to relet the. premises and that the execution of the new lease effected a surrender of defendant’s lease by operation of law. In opposing plaintiff’s motion for summary judgment defendant claims that she was constructively evicted from the premises by reason of plaintiff’s failure to maintain sufficient elevator service to enable defendant to conduct her business on the leased premises. Defendant also opposes the motion on the ground that the action is premature.
Plaintiff’s first defense that defendant refused and failed to relet the premises with due diligence is legally insufficient. A
Defendant’s second affirmative defense that the execution of the new lease effected a surrender of defendant’s lease by operation of law is also legally insufficient. Defendant fails to submit any facts in support of such defense and the papers in support of the motion clearly show that there was no surrender of the lease but that defendant was evicted by a final order in a summary proceeding for nonpayment of rent. Furthermore, the lease provides that upon default in payment of rent the landlord might dispossess the tenant by summary proceedings and relet it, the lessee remaining liable for any deficiency.
Defendant’s claim that there was a constructive eviction because of the landlord’s failure to maintain sufficient elevator service is untenable. By remaining in possession until actual eviction by summary proceedings, defendant waived her right to plead constructive eviction (Ashton Holding Co. v. Ross, 98 Misc. 586 ; Cable v. Bonnell, 9 Misc. 154 ; Cornwell v. Sanford, 222 N. Y. 248). Constructive eviction, therefore, is no defense (79th & 3d Realty Corp. v. Weiner, 27 N. Y. S. 2d 693).
Defendant further urges in opposition to the motion for summary judgment that the action is premature and that plaintiff ¡must wait until the expiration of the lease with defendant before suing for any deficiency which may occur. While it is true that after a tenant has been evicted in summary proceedings, the lease is at an end and what survives is a liability, not for rent, but for damages (Hermitage Co. v. Levine, 248 N. Y. 333, 336 ; Kottler v. New York Bargain House, 242 N. Y. 28), and that absent a clause in the lease providing otherwise, any deficiency •in rent may not be ascertained until after the expiration of the leased term (Harding v. Austin, 93 App. Div. 564 ; Halpern v. Manhattan Ave. Theatre Corp., 173 App. Div. 610, affd. 220 N. Y. 655 ; Darmstadt v. Knickerbocker C. & E. S. Co., 104 Misc. 547, revd. 188 App. Div. 129), it is also true that “ ‘ when the parties by their contract provide for the consequences of the breach, lay down a rule to admeasure the damages and agree when they are to be paid, the remedy thus provided must be exclusively followed ’ ” (Ruppert Realty Corp. v. Bank of United States, 156 Misc. 93, 99, citing McCready v. Lindenborn, 172 N. Y. 400, 409). The lease between the parties provides that
The defenses set up in the answer being insufficient in law and there being no triable issue raised by the pleadings nor any showing that defendant has a meritorious defense to the action,
Motion granted as indicated. Settle order.