Opinion
March 26, 1996
Appeal from the Supreme Court, First Department, Parness, J.P., McCooe, J., Glen, J.
The lease in question here, executed by petitioner's predecessor and respondent-tenant, allowed for use of the premises to conduct psychotherapy and counseling. Accepting the tenant's proof offered both at trial and on the motion for a new trial based on newly discovered evidence that the leased premises could not be used for its intended purpose due to the certificate of occupancy and zoning regulations, such fact does not relieve the tenant of the obligation to pay rent for the period of time he occupied the premises ( see, Abright v Shapiro, 92 A.D.2d 452, 453-454, appeal after remand 206 A.D.2d 268; Elkar Realty Corp. v Kamada, 6 A.D.2d 155, lv dismissed 5 N.Y.2d 844). Contrary to the tenant's contention on this appeal, there is no proof that the petitioner fraudulently induced execution of the lease or made a specific representation concerning the certificate of occupancy for the intended use under the lease ( see, National Conversion Corp. v Cedar Bldg. Corp., 23 N.Y.2d 621; Municipal Metallic Bed Mfg. Corp. v Dobbs, 253 N.Y. 313). In these circumstances, we agree with the majority at Appellate Term that the tenant is required to pay for its continued occupancy of the premises during the pendency of the non-payment summary proceedings inasmuch as a contrary ruling would result in unjust enrichment to the tenant.
We have considered tenant's remaining contentions and find them to be without merit.
Concur — Milonas, J.P., Wallach, Ross and Mazzarelli, JJ. [ See, 164 Misc.2d 347.]