46 A.D.2d 657 | N.Y. App. Div. | 1974
In three consolidated actions to recover a total of five months’ rent under a lease and for damages, plaintiffs appeal from a judgment of the Supreme Court, Westchester County, entered April 2, 1974 after a non jury trial, in their favor in the amount of $338.10, representing rent for only the first month in question, plus an amount for incidental damages (cost of repainting and counsel fees) and less the amount of a security deposit, plus costs and disbursements. Judgment modified, on the law and the facts, by increasing the award of $338.10 to $2,041.94 and increasing the total recovery (including costs and disbursements) accordingly. As so modified, judgment affirmed, with costs to appellants against respondent. The trial court’s conclusion that appellants’ December, 1970 nonpayment dispossess proceeding terminated the tenant’s obligation to pay rent is negated by the provision in the lease that the rent obligation shall survive summary proceedings. Such a provision is valid (Mann v. Munch Brewery, 225 N. Y. 189; Rasch, New York Landlord & Tenant [2d ed.], § 785 et seq.). The lease was an exhibit at the trial. Absent a request by the trial court, and no issue as to presence or absence of' a survival clause in the lease having been raised, it was not incumbent upon plaintiffs’ counsel to call this clause to the specific attention of the trial court. Martuscello, Acting P. J., Latham, Christ, Brennan and Benjamin, JJ., concur.
