210 E. 86th St. Corp. v. Eastside Exhibition Corp.

Appellate Terms of the Supreme Court of New York

210 E. 86th St. Corp. v. Eastside Exhibition Corp.

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 27, 2018

Docket2018 NYSlipOp 50627(U)

StatusPublished

This text of 210 E. 86th St. Corp. v. Eastside Exhibition Corp. (210 E. 86th St. Corp. v. Eastside Exhibition Corp.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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210 E. 86th St. Corp. v. Eastside Exhibition Corp., (N.Y. Ct. App. 2018).

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Opinion

210 East 86th Street Corp., Petitioner-Landlord-Appellant,

against

Eastside Exhibition Corp., Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County, (Lisa A. Sokoloff, J.), dated May 31, 2017, which denied its motion for summary judgment of possession in a holdover summary proceeding.

Per Curiam.

Order (Lisa A. Sokoloff, J.), dated May 31, 2017, reversed, with $10 costs, landlord's motion for summary judgment of possession granted, and the matter remanded to Civil Court for a hearing to determine the amount of use and occupancy and reasonable attorneys' fees due landlord. Execution of the warrant of eviction shall be stayed for 60 days from service of a copy of this order with notice of entry.

Landlord's motion for summary judgment of possession should have been granted based upon its unrebutted showing that tenant breached the insurance coverage requirements of the governing commercial lease agreement. The record evidence conclusively established that, for the policy year January 31, 2015 to January 31, 2016, tenant failed to maintain liability insurance in the required amount and naming landlord as an additional insured. A tenant's failure to maintain insurance coverage as required by the lease is an incurable default (see Prince Fashions, Inc. v 60G 542 Broadway Owner, LLC, 149 AD3d 529 [2017]; Kyung Sik Kim v Idylwood, NY, LLC, 66 AD3d 528 [2009]; Jackson 37 Co., LLC v Laumat, LLC, 31 AD3d 609, 610 [2006]; see generally Brainerd Mfg. Co. v Dewey Garden Lanes, 78 AD2d 365 [1981], appeal dismissed 53 NY2d 701 [1981]).

Tenant's waiver argument was barred by the "no waiver" clause of the lease (see Excel Graphics Tech. v CFG/AGSCB 75 Ninth Ave., 1 AD3d 65, 69-70 [2003], lv dismissed 2 NY3d 794 [2004]; see also Jefpaul Garage Corp. v Presbyterian Hosp. in City of NY, 61 NY2d 442 [1984]; 117-119 Leasing Corp. v Reliable Wool Stock, LLC, 139 AD3d 420, 421 [2016]).

The matter is remanded for a determination of the use and occupancy and reasonable attorneys' fees due landlord.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: April 27, 2018

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210 East 86th Street Corp., Petitioner-Landlord-Appellant,

against

Eastside Exhibition Corp., Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County, (Lisa A. Sokoloff, J.), dated May 31, 2017, which denied its motion for summary judgment of possession in a holdover summary proceeding.

Per Curiam.

Order (Lisa A. Sokoloff, J.), dated May 31, 2017, reversed, with $10 costs, landlord's motion for summary judgment of possession granted, and the matter remanded to Civil Court for a hearing to determine the amount of use and occupancy and reasonable attorneys' fees due landlord. Execution of the warrant of eviction shall be stayed for 60 days from service of a copy of this order with notice of entry.

Landlord's motion for summary judgment of possession should have been granted based upon its unrebutted showing that tenant breached the insurance coverage requirements of the governing commercial lease agreement. The record evidence conclusively established that, for the policy year January 31, 2015 to January 31, 2016, tenant failed to maintain liability insurance in the required amount and naming landlord as an additional insured. A tenant's failure to maintain insurance coverage as required by the lease is an incurable default (see Prince Fashions, Inc. v 60G 542 Broadway Owner, LLC, 149 AD3d 529 [2017]; Kyung Sik Kim v Idylwood, NY, LLC, 66 AD3d 528 [2009]; Jackson 37 Co., LLC v Laumat, LLC, 31 AD3d 609, 610 [2006]; see generally Brainerd Mfg. Co. v Dewey Garden Lanes, 78 AD2d 365 [1981], appeal dismissed 53 NY2d 701 [1981]).

Tenant's waiver argument was barred by the "no waiver" clause of the lease (see Excel Graphics Tech. v CFG/AGSCB 75 Ninth Ave., 1 AD3d 65, 69-70 [2003], lv dismissed 2 NY3d 794 [2004]; see also Jefpaul Garage Corp. v Presbyterian Hosp. in City of NY, 61 NY2d 442 [1984]; 117-119 Leasing Corp. v Reliable Wool Stock, LLC, 139 AD3d 420, 421 [2016]).

The matter is remanded for a determination of the use and occupancy and reasonable attorneys' fees due landlord.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: April 27, 2018

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