Motion by defendant Mt. Sinai Baptist Church of Roosevelt for summary judgment on its counterclaim for accrued rent and a warrant of eviction is denied.

This is an action for breach of contract by a tenant against the landlord. Plaintiff Roosevelt Children's Academy Charter School, Inc. holds a charter from the State University of New York to operate a charter school in Roosevelt. Defendant Mt. Sinai Baptist Church of Roosevelt, NY, Inc. is the owner of a parcel of land improved with a 2-story building located at 55 Mansfield Avenue in Roosevelt.

On May 31, 2005, the parties entered into a written lease whereby Mt. Sinai leased the lower floor of the building to Roosevelt Children for a term of five years, commencing on July 1, 2005 and terminating on June 30, 2010. Roosevelt's occupancy of the space was to be for classroom instruction and an office for business affairs. The rent was to be $1,500 per month, and the tenant was to pay an additional $300 per month as its pro rata share of utility charges and expenses. In view of Roosevelt's anticipated improvement of the premises, the tenant's obligation to pay rent was to commence on July 1, 2008. The lease provided that the tenant had the option to renew for three additional five-years terms, at a specified increased rent for each renewal period. [*2]

Plaintiff alleges that on or about March 24, 2009, the parties agreed that Roosevelt could use the upper floor of the building from 8:00 am to 2:30 pm through June 2009 for a rent of $1,000 per month. Plaintiff further alleges that it was agreed that the cost of improvements would be credited towards the monthly rent. Plaintiff alleges that it expended approximately $45,000 to repair and renovate the upper floor. However, defendants have denied plaintiff access to the upper floor of the premises.

Plaintiff commenced this action on September 22, 2009. Plaintiff asserts claims for breach of the oral agreement, fraud, and unjust enrichment. In its answer, Mt. Sinai asserts a counterclaim for breach of the lease by failing to make the required improvements and a counterclaim for accrued rent due on the lower floor of the premises.

Defendant Mt. Sinai is moving for summary judgment on its claim for accrued rent and utility charges. In support of its motion, Mt. Sinai submits an affidavit from Leonard Yates, its chairman of the board of trustees, that for the period July 1, 2008 to June 30, 2010 plaintiff failed to pay any rent. Defendant also requests a judgment of possession and warrant of eviction.

On a motion for summary judgment, it is the proponent's burden to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence

to demonstrate the absence of any material issues of fact (JMD Holding Corp. v. Congress Financial Corp., 4 NY3d 373, 384 [2005]). Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers(Id). However, if this showing is made, the burden shifts to the party opposing the summary judgment motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

Defendant's affidavit that plaintiff failed to pay rent establishes defendant's prima facie entitlement to judgment on its counterclaim for accrued rent. The burden shifts to plaintiff to show a triable issue as to whether defendant is entitled to accrued rent pursuant to the lease terms.

In opposition to the motion, plaintiff alleges that between August 2005 and March 2006, it spent over $1 million to improve and renovate the building. Plaintiff further alleges that defendant has failed to pay the electric bill since March 2005 and plaintiff was required to pay over $45,000 in electric bills to LIPA, as well as $6,000 to Lilco for gas service. Additionally, plaintiff alleges that in December 2007 there was flooding in the building on two separate occasions, which caused damage to plaintiff's property and disrupted use of several classrooms and the business office for a period of time. [*3]

Real Property Law § 227 provides that, "Where any building, which is leased or occupied, is destroyed or so injured by the elements, or any other cause as to be untenantable, and unfit for occupancy, and no express agreement has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his or her fault or neglect, quit and surrender possession of the leasehold premises...." However, where a constructively evicted tenant under a commercial lease fails to quit and surrender possession, it is bound by the lease terms and will not be relieved of its obligations (Schwartz, Kaplan & Gutstein v 271 Venture, 172 AD2d 226, 228 [1st Dept 1991]).

Since Roosevelt Children failed to quit and surrender possession of the first floor at the time of the flooding, they are bound by the terms of the lease, including the rent and utility charge provisions. Nevertheless, Roosevelt Children is entitled to an offset for electric and gas payments made, as well as the water damage to its property.

Where the main claim and the counterclaim arise from the same underlying transaction and are inextricably intertwined, summary judgment should be denied (Yoi-Lee Realty v 177 Realty, 208 AD2d 185, 189 [1st Dept 1995]).Mt. Sinai Baptist's claim for first floor rent is inextricably intertwined with Roosevelt Children's claims for breach of the oral agreement concerning occupancy of the second floor of the building. Accordingly, defendant Mt. Sinai Baptist's motion for summary judgment on its counterclaim for accrued rent is denied.

So ordered.

DatedJ.S.C.