Carey & Associates LLC v. 521 Fifth Avenue Partners, LLC

130 A.D.3d 469, 13 N.Y.S.3d 387

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 7, 2015
• Docket: 15648 650165/08
• Status: Published

Opinion

Order, Supreme Court, New York County (Anil C. Singh, J.), entered April 25, 2014, which, to the extent appealed from as limited by the briefs, granted defendants-respondents’ motion for summary judgment dismissing plaintiff’s first three causes of action, and denied plaintiff’s motion for summary judgment on those causes of action, unanimously affirmed, with costs.

The court correctly dismissed plaintiff’s rent overcharge claim. Pursuant to the applicable lease agreement, plaintiff’s responsibility to pay rent began on March 21, 2003 — the date it signed the substantial completion letter without objection and began occupying the premises for business purposes. Defendant did not allow plaintiff to occupy the premises before the rent commencement date.

The court correctly dismissed the actual eviction and breach of the covenant of quiet enjoyment causes of action. The additional renovation work about which plaintiff now complains, which included, among other things, the complete removal and reinstallation of carpeting, was specifically requested by plaintiff. Thus, the work does not amount to an eviction or ouster (Jackson v Westminster House Owners Inc., 24 AD3d 249, 250 [1st Dept 2005], lv denied 7 NY3d 704 [2006]; see Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 82-83 [1970]).

Plaintiff has abandoned its appeal with respect to its unjust enrichment and negligence causes of action, as it did not address the dismissal of those claims in its appellate briefs (Furlender v Sichenzia Ross Friedman Ference LLP, 79 AD3d 470, 470 [1st Dept 2010]).

We have considered plaintiff’s remaining contentions and find them unavailing. Concur — Tom, J.P., Andrias, Feinman, Gische and Kapnick, JJ.