Opinion
3558, 158006/15.
03-28-2017
ESRT 250 WEST 57TH ST., L.L.C., Plaintiff–Respondent, v. 13D/WEST 57TH LLC, et al., Defendants–Appellants. 13D/West 57th LLC, Counterclaim Plaintiff–Appellant, v. ESRT 250 West 57th St., L.L.C., et al., Counterclaim Defendants–Respondents.
Westerman, Ball, Ederer, Miller, Zucker & Sharfstein, LLP, Uniondale (Jeffrey A. Miller of counsel), for appellants. Sternbach, Lawlor & Rella LLP, New York (Anthony J. Rella of counsel), for respondents.
Westerman, Ball, Ederer, Miller, Zucker & Sharfstein, LLP, Uniondale (Jeffrey A. Miller of counsel), for appellants.
Sternbach, Lawlor & Rella LLP, New York (Anthony J. Rella of counsel), for respondents.
RICHTER, J.P., MAZZARELLI, KAHN, GESMER, JJ.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered March 4, 2016, which, insofar as appealed from as limited by the briefs, granted the motion of plaintiff and counterclaim defendants' to dismiss the first, second and third counterclaims and the fourth, fifth and part of the third affirmative defenses, unanimously affirmed, without costs.
Defendants, a commercial tenant and its principal, asserted counterclaims and affirmative defenses predicated on the violation of the covenant of quiet enjoyment or constructive eviction. Those claims were properly dismissed, as the only harm suffered was by tenant's purported subtenant, which subtenancy was wholly unauthorized, in violation of the lease (see Excel Graphics Tech. v. CFG/AGSCB 75 Ninth Ave., 1 A.D.3d 65, 70, 767 N.Y.S.2d 99 [1st Dept.2003], lv. dismissed 2 N.Y.3d 794, 781 N.Y.S.2d 292, 814 N.E.2d 464[2004] ). Tenant cannot recover for interference by landlord with an unlawful subtenancy (cf. 150 Greenway Terrace, LLC v. Cullen, 14 Misc.3d 130[A], 2007 N.Y. Slip Op. 50020[U], 2007 WL 29060 [App.Term, 2d Dept.2007] ). Defendants' claims are further barred by the clause in the lease that prohibits landlord from being liable for the acts of other tenants (see Alpha Holding Corp. v. Brescio, 2009 N.Y. Slip Op. 30936[U], 2009 WL 1168881 [Sup.Ct., N.Y. County 2009] ).
The counterclaim and affirmative defense based on fraud were also properly dismissed. While landlord allegedly knew that the neighboring unit's marijuana smoking would impair defendants' use of the premises, the landlord made no actionable misstatement, and it had no duty to speak, given the arm's length nature of the landlord-tenant relationship (see Sehera Food Servs. Inc. v. Empire State Bldg. Co. L.L.C., 74 A.D.3d 542, 903 N.Y.S.2d 364 [1st Dept.2010] ).