L & B 595 Madison, Inc. v. Ravagnan

Appellate Division of the Supreme Court of New York

L & B 595 Madison, Inc. v. Ravagnan

242 A.D.2d 413, 662 N.Y.S.2d 29, 1997 N.Y. App. Div. LEXIS 8502

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 4, 1997

StatusPublished

Cited by2 cases

This text of 242 A.D.2d 413 (L & B 595 Madison, Inc. v. Ravagnan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

L & B 595 Madison, Inc. v. Ravagnan, 242 A.D.2d 413, 662 N.Y.S.2d 29, 1997 N.Y. App. Div. LEXIS 8502 (N.Y. Ct. App. 1997).

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Opinion

Order, Supreme Court, New York County (Carol Huff, J.), entered on or about July 19, 1996, which, in an action by a landlord against a tenant for breach of a commercial lease, inter alia, denied plaintiff’s motion for summary judgment on the issue of defendant’s liability for rent and dismissed defendant’s counterclaim for constructive eviction, unanimously modified, on the law and the facts, to dismiss defendant’s first affirmative defense of surrender and acceptance of the leased premises, and otherwise affirmed, without costs.

Defendant’s first affirmative defense claiming that plaintiff’s acceptance of defendant’s surrender of the premises estops plaintiff from seeking any rent payments should be dismissed since defendant’s early departure from the premises is not unequivocally referable to an oral modification of the lease, which, by its terms, could only be modified in writing (see, General Obligations Law § 5-703 [1]; § 15-301 [1]; Riverside Research Inst. v KMGA, Inc., 108 AD2d 365, 368, affd 68 NY2d 689). Defendant’s claim that he was forced to abandon the [414]*414premises due to a lack of elevator service, air conditioning and “continuous” water leakage is well pleaded and not yet ripe for summary disposition. We have considered plaintiffs remaining contentions and find them to be without merit. Concur—Rosenberger, J. P., Wallach, Nardelli, Rubin and Colabella, JJ.

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Order, Supreme Court, New York County (Carol Huff, J.), entered on or about July 19, 1996, which, in an action by a landlord against a tenant for breach of a commercial lease, inter alia, denied plaintiff’s motion for summary judgment on the issue of defendant’s liability for rent and dismissed defendant’s counterclaim for constructive eviction, unanimously modified, on the law and the facts, to dismiss defendant’s first affirmative defense of surrender and acceptance of the leased premises, and otherwise affirmed, without costs.

Defendant’s first affirmative defense claiming that plaintiff’s acceptance of defendant’s surrender of the premises estops plaintiff from seeking any rent payments should be dismissed since defendant’s early departure from the premises is not unequivocally referable to an oral modification of the lease, which, by its terms, could only be modified in writing (see, General Obligations Law § 5-703 [1]; § 15-301 [1]; Riverside Research Inst. v KMGA, Inc., 108 AD2d 365, 368, affd 68 NY2d 689). Defendant’s claim that he was forced to abandon the [414]*414premises due to a lack of elevator service, air conditioning and “continuous” water leakage is well pleaded and not yet ripe for summary disposition. We have considered plaintiffs remaining contentions and find them to be without merit. Concur—Rosenberger, J. P., Wallach, Nardelli, Rubin and Colabella, JJ.

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Bluebook (online)

242 A.D.2d 413, 662 N.Y.S.2d 29, 1997 N.Y. App. Div. LEXIS 8502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/l-b-595-madison-inc-v-ravagnan-nyappdiv-1997.

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