Opinion
570400/03.
Decided April 12, 2004.
Tenant appeals from an amended final judgment of the Civil Court, New York County, dated April 28, 2003 (Paul G. Feinman, J.) awarding landlord possession and a money judgment in the sum of $130,458.48 upon orders of the same court and Judge dated March 19, 2003 and April 28, 2003 granting landlord's motion for summary judgment on the nonpayment petition, and dismissing tenant's affirmative defense and counterclaim without prejudice.
Amended final judgment dated April 28, 2003 (Paul G. Feinman, J.) affirmed, with $25 costs.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
Civil Court properly granted landlord summary judgment on the nonpayment petition and struck tenant's claim for a rent abatement and counterclaim for damages arising out of tenant's own excavation of the rear yard of the leased premises. The counterclaim was not inextricably intertwined with landlord's claim for rent, and the commercial lease provision barring interposition of counterclaims in summary proceedings (Article 25) was properly given effect and the counterclaim dismissed without prejudice to its assertion in a plenary action (Amdar v. Hahalis, 145 Misc 2d 987; Bomze v. Jaybee Photo Suppliers, 117 Misc 2d 957). The independent obligation of a commercial tenant to pay rent is not suspended where, as here, the premises were demised "as is" and tenant remained in possession (Towers Org. v. Glockhurst Corp., 160 AD2d 597, 599; Earbert Rest. v. Little Luxuries, 99 AD2d 734). Tenant's belated claim of constructive eviction lacks merit (Barash v. Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83).
This constitutes the decision and order of the court.