Padell Nadell Fine Weinberger & Co. v. Midtown Realty Co.

245 A.D.2d 188, 665 N.Y.S.2d 891, 1997 N.Y. App. Div. LEXIS 13127

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1997
• Status: Published

Opinion

—Order, Supreme Court, New York County (Paula Omansky, J.), entered June 9, 1997, which, in an action involving plaintiff tenant’s rent obligation, upon the parties’ respective motions for partial summary judgment, awarded defendant landlord summary judgment in the amount of $120,601 on its counterclaim for unpaid rent seeking $388,222, stayed entry of judgment on such counterclaim pending resolution of the tenant’s cause of action for breach of contract or further order of the court, dismissed the tenant’s causes of action for fraud, unjust enrichment and mutual mistake, sustained the tenant’s cause of action alleging that the landlord’s calculation of additional rent was in breach of the lease, and dismissed the landlord’s affirmative defenses of waiver, estoppel, laches and unclean hands, unanimously affirmed, without costs. Appeal from decision, same court and Justice, filed May 21, 1997, unanimously dismissed, without costs.

The estoppel certificates executed by the tenant in connection with the landlord’s applications for a loan do not “unmistakeably or unequivocally establish [the tenant’s] intentional relinquishment of [a] known right” to seek reimbursement from the landlord of claimed overpayments arising out of the computation of additional rent under the lease (Won’s Cards v Samsondale/Haverstraw Equities, 165 AD2d 157, 164). Nor may the certificates, executed in favor of the lender, be used to estop the tenant from asserting its rights as against the landlord (see, Hammelburger v Foursome Inn Corp., 54 NY2d 580, 588). The IAS Court properly granted the landlord summary judgment on its counterclaim for base rent, and properly exercised its discretion in staying enforcement thereof pending determination of the tenant’s sole remaining claim (CPLR 3212 [e] [2]). We have considered the parties’ other arguments for affirmative relief and find them to be without merit. Concur— Sullivan, J. P., Rosenberger, Nardelli, Williams and Tom, JJ.