Carlyle, LLC v. Beekman Garage LLC

• Decision Date: 19 November 2015
• Citation: 19 N.Y.S.3d 520,2015 N.Y. Slip Op. 08499,133 A.D.3d 510
• Parties: The CARLYLE, LLC, Plaintiff–Respondent, v. BEEKMAN GARAGE LLC, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 510
19 N.Y.S.3d 520
2015 N.Y. Slip Op. 08499

The CARLYLE, LLC, Plaintiff–Respondent,
v.
BEEKMAN GARAGE LLC, et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

Nov. 19, 2015.

19 N.Y.S.3d 520

Herrick, Feinstein LLP, New York (David Feuersteinof counsel), for appellants.

Stroock & Stroock & Lavan LLP, New York (Kevin L. Smithof counsel), for respondent.

Opinion

133 A.D.3d 510

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered July 2, 2014, which, insofar appealed from, granted plaintiff's motion for partial summary judgment, denied defendant Quik Park 1633 Garage LLC (Quik Park 1633)'s cross motion for summary judgment, directed an assessment of damages against defendants, and directed plaintiff to file a note of issue and statement of readiness by August 1, 2014, unanimously modified, on the law, to deny so much of plaintiff's motion as sought to dismiss defendants' seventh affirmative defense, and otherwise affirmed, without costs.

The court properly found that the Beekman defendants failed to raise an issue of fact as to whether the garage was rendered partially unusable by casualty. If the repairs to the garage's facade had been necessitated by a casualty—for example, if an earthquake had caused a crack in the facade, or if a violent storm had caused a cornice to fall off—defendants would have known about it. Because article 9 of the lease (fire and casualty) was inapplicable, the court properly found that article 4 applied.

The Beekman defendants' argument that they were partially evicted from the garage is unavailing. “To be an eviction, constructive or actual, there must be a wrongful act by the landlord” (Barash v. Pennsylvania Term. Real Estate Corp.,26 N.Y.2d 77, 82, 308 N.Y.S.2d 649, 256 N.E.2d 707 [1970]). Plaintiff's installation of temporary scaffolding as part of its repairs to the garage's facade was not wrongful because it was authorized by the lease (see e.g. Ernst v. Straus,114 App.Div. 19, 99 N.Y.S. 597 [1st Dept.1906]; Bijan Designer for Men v. St. Regis Sheraton Corp.,142 Misc.2d 175, 536 N.Y.S.2d 951 [Sup.Ct., N.Y. County 1989], affd.150 A.D.2d 244, 543 N.Y.S.2d 296 [1st Dept.1989]). As was noted in Bijan,“tenants are well advised ... to specify some limits to the exculpatory clause concerning repairs” (id.at 181, 536 N.Y.S.2d 951).

Because the court properly granted plaintiff summary judgment on the first cause of action (for unpaid rent), it also properly granted plaintiff summary judgment on the second and fourth causes of action (for late fees and attorneys' fee, respectively). Plaintiff is entitled to such fees under articles 53(B) and 19 of the lease, respectively.

133 A.D.3d...