46 Warren, LLC v. Lynch

2017 NY Slip Op 8317, 155 A.D.3d 547, 64 N.Y.S.3d 640

Opinion

Order, Appellate Term of the Supreme Court, First Department, entered July 23, 2015, which reversed a judgment of the Civil Court, New York County (James E. d’Auguste, J.), entered September 17, 2014, awarding petitioner landlord unpaid rent, late charges and interest, upon an order that granted petitioner summary judgment on its claim for unpaid rent, and dismissing respondent tenant’s affirmative defense and counterclaim for breach of the warranty of habitability, unanimously affirmed, without costs.

While a warranty of habitability will not be implied in a commercial lease (Rivera v JRJ Land Prop. Corp., 27 AD3d 361, 364 [1st Dept 2006]; see Real Property Law § 235-b), respondent does not rely on an implied warranty. She cites the express terms of the subject lease, which was prepared by petitioner, which permitted only residential use, and included petitioner’s warranty of habitability and agreement to provide certain services, such as heat and hot water, enforceable by the warranty of habitability. The parties acknowledge that they agreed that respondent could use the premises for commercial purposes, setting up the apartment as a home office. However, petitioner neither sought reformation of the lease nor demonstrated “unusual circumstances” that would relieve it of its duty to abide by the lease terms (see George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 218 [1978]).

Concur— Richter, J.P., Kapnick, Webber, Oing and Singh, JJ.