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AWRP Props., Inc. v 506 Broadway, Inc.
2008 NY Slip Op 52573(U) [22 Misc 3d 126(A)]
Decided on December 30, 2008
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on December 30, 2008
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Davis, J.P., Schoenfeld, Heitler, JJ
570694/07.

AWRP Properties, Inc., Petitioner-Landlord-Respondent,

against

506 Broadway, Inc., Respondent-Tenant-Appellant, -and- XYZ Corp., Doron Zabari, Eyal Zabari and Zabari, Respondents-Undertenants.


Tenant appeals from an order of the Civil Court of the City of New York, New York County (Shlomo S. Hagler, J.), dated June 12, 2007, which, in a commercial holdover proceeding, denied its motion for summary judgment and granted landlord's cross motion for partial summary judgment dismissing the first affirmative defense.


Per Curiam.
Order (Shlomo S. Hagler, J.), dated June 12, 2007, affirmed, with $10 costs.

We agree, essentially for reasons stated by Shlomo S. Hagler, J. at Civil Court, that landlord was entitled to enforce the conditional limitation for nonpayment of rent contained in the governing commercial lease agreement (see Grand Liberte Coop., Inc. v Bilhaud, 126 Misc 2d 961 [1984]). That the lease terms authorized the ancillary use of a portion of the third floor of the building as a single "caretaker accommodation" did not, on this record and without more, serve to convert the otherwise commercial tenancy into a residential or mixed-use one.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 30, 2008