ZCWK Associates v. Spadaro

233 A.D.2d 126, 649 N.Y.S.2d 425, 1996 N.Y. App. Div. LEXIS 11394

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1996
• Status: Published

Opinion

—Order, Supreme Court, New York County (Lorraine Miller, J.), entered June 21, 1996, which granted plaintiff’s motion for summary judgment to the extent of dismissing defendants’ counterclaims, and granted defendant’s cross motion for summary judgment to the extent of dismissing the complaint, unanimously affirmed, without costs.

The motion court correctly held that plaintiff landlord’s "self-help” action in changing the locks to the demised premises, thereby impeding defendants’ access and use thereof prior to the rent commencement date, and therefore prior to any default by defendant tenant, was a breach of the lease that suspended the tenant’s yet to be incurred obligation to pay rent (see, Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 82-84). Further, landlord is precluded from recovering against defendant guarantor because the guarantee limited his obligations to the period that the tenant "physically occupied]” the demised premises, and the tenant never came into actual physical possession. The tenant’s forcible eviction claim for treble damages under RPAPL 853 is without merit because the tenant never moved into the premises. We have considered the parties’ remaining contentions for affirmative relief and find them to be without merit. Concur—Wallach, J. P., Rubin, Nardelli, Williams and Andrias, JJ.