Appeal from an order of the Supreme Court (Aulisi, J.), entered December 16, 2004 in Warren County, which granted defendants’ motion for partial summary judgment dismissing the complaint.
Flaintiffs own a commercial warehouse in the City of Glens Falls, Warren County. They entered into a five-year lease with defendants, commencing April 1, 1997, which included clauses requiring defendants to maintain and clean the premises and engage in a preventive maintenance program for the “heating, plumbing, electrical and alarm systems.” In January 2002,
At the time of the walk-through, plaintiffs noted that, although defendants had vacated the building, the premises suffered from substantial damage which included many of the systems which were covered by the preventive maintenance program. At plaintiffs’ request, defendants agreed to fully repair the premises. By September 2002, the repairs were completed, the final rent payment was tendered and defendants returned their set of keys.
In December 2003, plaintiffs commenced this action averring, among other things, that defendants owed plaintiffs rental arrearages for the period between April 2002 and October 2002 due to their status as holdover tenants. Defendants successfully moved for partial summary judgment and this appeal ensued.
Plaintiffs’ claim of a holdover tenancy premised upon defendants’ retention of a set of keys and their periodic use of the premises to complete repairs is insufficient. Typically, “a tenant who has vacated [the] premises but breached covenants to repair cannot be held liable for holdover rent while the repairs are made and the premises unleased” (Arnot Realty Corp. v New York Tel. Co., 245 AD2d 780, 782 [1997]; see Chemical Bank v Stahl, 255 AD2d 126, 127 [1998]; Orkin’s Fashion Stores v Kress & Co., 68 NYS2d 764, 764 [1947]; Canfield v Harris & Co., 222 App Div 326, 326 [1927], affd 248 NY 541 [1928]; Mudge v West End Brewing Co., 145 App Div 28, 31 [1911], affd 207 NY 696 [1913]; see also City of New York v Pennsylvania R.R. Co., 37 NY2d 298, 301 [1975]; Tobin v Union News Co., 13 NY2d 1155, 1157 [1964]; cf. Palumbo v Donalds,
Mercure, J.P., Spain, Mugglin and Rose, JJ., concur. Ordered that the order is affirmed, with costs.
. The adequacy of said repairs are not the subject of this litigation and it is undisputed that plaintiffs always retained their own set of keys.
. We note that the lease agreement does not provide for consequential damages due to a breach of a covenant to repair.
