Opinion
No. 570900/11.
2012-06-26
INTERNATIONAL DEVELOPMENT INSTITUTE, INC., Petitioner–Landlord–Appellant, v. 826 WESTCHESTER CORP., Respondent–Tenant–Respondent.
Landlord appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), dated August 23, 2011, which granted tenant's motion to dismiss the nonpayment petition at the close of landlord's case.
Present: LOWE, III, P.J., SHULMAN, TORRES, JJ.
PER CURIAM.
Order (Fernando Tapia, J.), dated August 23, 2011, reversed, with $10 costs, motion denied and the matter remanded for a new trial.
This commercial nonpayment proceeding should not have been dismissed at the close of landlord's case. The evidence so far presented, viewed in the light most favorable to landlord ( see Szczerbiak v. Pilat, 90 N.Y.2d 553, 556 [1997] ), established that tenant owed substantial ($41,482.28) rent arrears dating back to August 2010. This evidence was sufficient to withstand tenant's motion to dismiss, and this notwithstanding tenant's affirmative defense that it was fraudulently induced into signing the governing lease agreement by the false representation that the certificate of occupancy conformed to the intended use of the premises. At this juncture, triable issues are presented as to whether tenant reasonably relied upon any alleged misrepresentation ( see Progressive Image Gruppe v. 162 Charles St. Owners, 272 A.D.2d 66, 67 [2000];Jordache Enters. v. Gettinger Assoc., 176 A.D.2d 616, 617 [1991],lv dismissed80 N.Y.2d 925 [1992] ), and whether the “absence of a [conforming] certificate of occupancy had interfered with [tenant's] possession and lawful use of the subject premises” (Jordache Enters. v. Gettinger Assoc., 176 A.D.2d at 617).