144 A.D.2d 956 | N.Y. App. Div. | 1988
Order and judgment unanimously reversed on the law without
With respect to the complaint, dismissal was not warranted unless the moving papers conclusively established that no claim existed (Rovello v Orofino Realty Co., 40 NY2d 633, 635; Bassett Hosp. v Hospital Plan, 89 AD2d 240, 243). Because conflicting affidavits were submitted regarding whether defendants unreasonably withheld consent, Special Term erred by resolving that issue on the papers (Grunder v Recckio, 138 AD2d 923, 924). Moreover, plaintiff’s claim was not rendered moot by a subsequent sale of the property to the proposed sublessee. The affirmative defense alleges, in effect, that defendants never had any obligation to give consent in the first instance because plaintiffs performance of the duty to repair was a condition precedent to the duty to give consent. This claim lacks merit. Whether the covenant to repair was a condition precedent rests upon whether the provisions concerning repair and consent were dependent covenants (see, Broad Props, v Wheels Inc., 43 AD2d 276, 279, affd 35 NY2d 821). This is determined by the intention of the parties as expressed in the lease (56-70 58th St. Holding Corp. v Fedders-Quigan Corp., 5 NY2d 557, 563), not by the mere existence of both provisions in the same lease. It is undisputed that the giving of consent was not expressly conditioned upon plaintiff’s performance of repairs, and defendants have not suggested any construction of the lease that would support their claim. In sum, the defense that defendants never had a duty, as a matter of law, to even consider whether to consent is without merit and should have been dismissed.
Completely separate from the legal issue asserted in the affirmative defense, the moving papers and pleadings raise a different issue concerning the relationship between these two covenants. Defendants affirmatively promised not to unreason