Opinion
14290-14290A Index No. 154582/20 Case No. 2021–01045, 2021–01047
10-05-2021
830 EIGHTH AVENUE LLC, Plaintiff–Appellant, v. GLOBAL AT 8TH LLC, et al., Defendants–Respondents.
SDK Heiberger, LLP, New York (Steven B. Sperber of counsel), for appellant. Todd Rothenberg, New Rochelle, for respondents.
SDK Heiberger, LLP, New York (Steven B. Sperber of counsel), for appellant.
Todd Rothenberg, New Rochelle, for respondents.
Webber, J.P., Singh, Scarpulla, Mendez, Rodriguez, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about December 8, 2020, which denied plaintiff's motion for summary judgment, and order, same court and Justice, entered on or about March 23, 2021, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to renew its motion for summary judgment, unanimously reversed, on the law, without costs, the motions granted, and the matter remanded to Supreme Court for a determination on plaintiff's attorneys’ fees and costs.
Plaintiff's initial motion papers, which included an affidavit by plaintiff's managing member who signed the lease for plaintiff, were sufficient to authenticate the relevant documents. The documents had independent legal significance, and did not need to meet the hearsay exception of CPLR 4518(a) ( All Borough Group Med. Supply, Inc. v. GEICO Ins. Co., 43 Misc.3d 27, 28–29, 984 N.Y.S.2d 537 [App. Term, 2d Dept. 2013] ).
However, Supreme Court should also have granted plaintiff’ motion for renewal, because the additional information plaintiff submitted addressed an issue that the court raised sua sponte on the original motion (see Scannell v. Mt. Sinai Med. Ctr., 256 A.D.2d 214, 214, 683 N.Y.S.2d 18 [1st Dept. 1998] ).
The alleged subtenant's holdover on the premises prevented defendants from surrendering the entire leased premises, thus rendering defendants liable for the full rent for the period under the terms of the lease and the guaranty ( 1133 Bldg. Corp. v. Ketchum Communications, 224 A.D.2d 336, 336, 638 N.Y.S.2d 450 [1st Dept. 1996], lv dismissed 88 N.Y.2d 963, 647 N.Y.S.2d 716, 670 N.E.2d 1348 [1996], lv denied 89 N.Y.2d 816, 659 N.Y.S.2d 857, 681 N.E.2d 1304 [1997] ). As a result, rent was owed through July 21, 2020, the date that the alleged subtenant's rights were judicially terminated. Furthermore, plaintiff calculated the damages correctly and gave credit to defendants for the security deposit.
Defendants failed to raise an issue of fact as to their defense based on the warranty of habitability (see Real Property Law § 235–b ). There is no dispute that defendants were sublessors and never inhabited the premises; thus, they could not assert any claim or setoff based on a breach of the warranty ( Genson v. Sixty Sutton Corp., 74 A.D.3d 560, 560, 905 N.Y.S.2d 24 [1st Dept. 2010] ; Adler v. Ogden CAP Properties, LLC, 42 Misc.3d 613, 624, 976 N.Y.S.2d 857 [Sup. Ct., N.Y. County 2013], affd sub nom. Adler v. Ogden CAP Properties, 126 A.D.3d 544, 2 N.Y.S.3d 902 [1st Dept. 2015] ).
Both the lease and the guaranty expressly provide for attorneys’ fees and costs to plaintiff in connection with enforcing its rights under those agreements. We therefore remand to Supreme Court for a calculation of those fees and costs.