Marina Towers Assoc. v Stacy's Landing
2003 NY Slip Op 51361(U)
Decided on October 27, 2003
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
Appellate Term, First Department


[*1]
This opinion is uncorrected and will not be published in the Official Reports.

Digest-Index Classification:
Landlord and Tenant—Lease

Decided on October 27, 2003
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. WILLIAM P. McCOOE
HON. WILLIAM J. DAVIS
HON. PHYLLIS GANGEL-JACOB, Justices.
570134/03

MARINA TOWERS ASSOCIATES BY HUDSON TOWERS HOUSING CO., INC. AS GENERAL PARTNER, Petitioner-Landlord-Respondent, [*2]

against

STACY'S LANDING A/K/A STEAMERS LANDING, Respondent-Tenant-Appellant.


Tenant appeals from an order of the Civil Court, New York County, entered September 30, 2002 (Cynthia S. Kern, J.) which, inter alia, granted a motion by landlord to dismiss tenant's fourth and ninth affirmative defenses and first, second and third counterclaims in a nonpayment summary proceeding.


PER CURIAM:

Order entered September 30, 2002 (Cynthia S. Kern, J.) affirmed, with $10 costs, for the reasons stated by Cynthia S. Kern, J. at Civil Court.

We sustain the dismissal of tenant's fourth affirmative defense insofar as it sought recovery of a total rent abatement pursuant to paragraph 41(B) (ii) of the parties' commercial lease, in view of the tenant's demonstrated failure to give the written notice unambiguously required by the lease terms to trigger the benefits of that provision (see, [*3]Milltown Park Inc. v American Felt and Filter Co., 180 AD2d 235). In affirming, we express no view as to tenant's entitlement to recover a rent abatement under lease paragraph 41(A), whose provisions contain no comparable notice requirement.

This constitutes the decision and order of the court.