Opinion
December 8, 1992
Appeal from the Supreme Court, New York County (William J. Davis, J.).
We reject the defendants-appellants' contention that an issue of fact exists as to whether their subtenants have ceased sidewalk selling in violation of the lease. There is clearly no issue of fact with respect to past violations, and the affidavits and photographic evidence submitted by the parties merely underscore the continuing and potentially recurrent nature of the violations, entitling plaintiff to permanent injunctive relief (see, Board of Mgrs. v Frazier, 81 A.D.2d 760, 761, amended 83 A.D.2d 504, affd 55 N.Y.2d 991; Rosenthal v Helfer, 136 Misc.2d 9, 11; State of New York v Midland Equities, 117 Misc.2d 203, 206-207).
Similarly, with respect to the unauthorized alteration of the storefront by the defendants' subtenant, Hindi Sulian, the installation of double-width entrance doors clearly constituted a substantial structural modification (see, Two Guys v S.F.R. Realty Assocs., 63 N.Y.2d 396, 400) and the record reveals no factual issue as to whether or not plaintiff unreasonably withheld its consent to such alteration. Indeed, defendants have failed to submit any probative evidence demonstrating that such consent was, in fact, sought from plaintiff. We have considered the defendants' remaining arguments and find them to be without merit.
Concur — Carro, J.P., Milonas, Ellerin, Wallach and Kupferman, JJ.