Consolidated appeal from (1) a final judgment of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered June 2, 2004, and (2) a final judgment of the same court (Stephen S. Gottlieb, J.), entered May 17, 2005. The final judgment entered June 2, 2004, after a nonjury trial, awarded landlord possession and the principal sum of $34,710.80 in a commercial nonpayment summary proceeding. The final judgment entered May 17, 2005, upon an order granting a cross motion by landlord for summary judgment, awarded landlord possession and the principal sum of $18,000 in a subsequent commercial nonpayment summary proceeding.

Final judgments affirmed without costs.

In the first of the two instant commercial nonpayment summary proceedings involving the same premises, landlord established, prima facie, that it owns and leased to Hassan El-Nahal (tenant) a premises known as 55-50 Metropolitan Avenue for use as a laundromat. Landlord subsequently leased an adjoining premises to another tenant for conversion into a retail liquor store known as 55-48 Metropolitan Avenue. The adjoining premises was separated from the premises leased to tenant by a permanent brick and cement wall, save for a doorway-sized connecting aperture. Upon taking possession, the liquor-store tenant sealed the connecting doorway. Tenant's architect's plan for his premises' conversion to a laundromat, dated shortly [*2]after his lease commenced, concerned only the area of which he took actual possession.

As a defense to the first proceeding, tenant claimed, inter alia, that his lease included the area subsequently leased as a liquor store and that he was evicted therefrom; that the liquor store conveyance was invalid in that both premises are legally known as 55-48 Metropolitan Avenue; and that the certificate of occupancy was violated thereby barring landlord from recovering rent. After trial, the court made factual findings adverse to tenant and entered a final judgment awarding landlord possession, the sum sought in the petition, and the additional unpaid sums that had accrued through the time of trial. Tenant satisfied the judgment, thereby staying issuance of the warrant.

Thereafter tenant again withheld rent, additional rent and other charges, and landlord commenced the second nonpayment proceeding, whereupon tenant interposed the defenses asserted in the first nonpayment proceeding. After landlord moved to strike these defenses and for summary judgment, inter alia, on the ground that tenant is collaterally estopped from relitigating issues determined adversely to tenant in the first summary proceeding, tenant moved, in effect, to set aside the first final judgment on the basis of an intervening administrative determination that the creation of a second, independent commercial storefront violated the certificate of occupancy, which provided for only a single commercial storefront at the premises presently occupied by the laundromat and liquor store. Tenant argued that the violation confirmed the defective conveyance and that a partial eviction occurred which, at the very least, entitled him to a rent abatement in proportion to the diminution of his leasehold represented by the space occupied by the liquor store. The court in the first proceeding (Howard G. Lane, J.) denied the motion by order dated May 11, 2005. By order dated May 16, 2005, the court (Stephen S. Gottlieb, J.) granted landlord's motion for summary judgment in the second proceeding on the basis of collateral estoppel.

The trial evidence adduced in the first proceeding amply supports the court's determinations that tenant was well aware that the premises of which he took possession was all that the lease conveyed, in accordance with the parties' intentions; that tenant never objected to the lease of the remaining space to another tenant; and that tenant failed to prove that, by virtue of the second lease, he was deprived of anything to which he was entitled under his lease or that the activities of the liquor store interfered with the beneficial use and enjoyment of his own leasehold. Thus, tenant established no partial eviction.

Even if the creation of the liquor store violated the certificate of occupancy, said violation was of no consequence to tenant's obligation to pay rent. "[E]vidence that the leased premises could not be used for its intended purpose due to the certificate of occupancy . . . does not relieve the tenant of the obligation to pay rent for the period of time he occupied the premises" (Phillips & Huyler Assocs. v Flynn, 225 AD2d 475, 476 [1996]), "inasmuch as a contrary ruling would result in unjust enrichment to the tenant" (id.; see also 56-70 58th St. Holding Corp. v Fedders-Quigan Corp., 5 NY2d 557, 561 [1959]; Silver v Moe's Pizza, 121 AD2d 376, 378 [1986]; Ovalles v Mayer Garage Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51261[U] [App Term, 1st Dept]). Tenant never argued below that his lease conditioned his obligation to pay rent upon a proper certificate of occupancy (56-70 58th St. Holding Corp. v Fedders-Quigan Corp., 5 NY2d at 563; Rubin v Dondysh, 153 Misc 2d 657, 658-659 [App Term, 2d & 11th Jud Dists 1991]). [*3]
As the only defenses of colorable merit in the second proceeding were identical to the defenses tenant interposed in the first proceeding, the entry of the final judgment of June 2, 2004 collaterally estopped tenant from relitigating those issues in the second proceeding (see Ryan v New York Tel. Co., 62 NY2d 494 [1984]; Church v New York State Thruway Auth., 16 AD3d 808 [2005]) and the final judgment entered therein should also be affirmed.
We have considered tenant's remaining claims and find them without merit.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 25, 2006