Charlebois v. Carisbrook Industries, Inc.

• Decision Date: 10 November 2005
• Docket Number: 98014.
• Citation: Charlebois v. Carisbrook Industries, Inc., 23 A.D.3d 821, 803 N.Y.S.2d 795, 2005 NY Slip Op 8252 (N.Y. App. Div. 2005)
• Parties: CLAUDE C. CHARLEBOIS et al., Appellants, v. CARISBROOK INDUSTRIES, INC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

23 A.D.3d 821

803 N.Y.S.2d 795

2005 NY Slip Op 08252

CLAUDE C. CHARLEBOIS et al., Appellants, v. CARISBROOK INDUSTRIES, INC., et al., Respondents.

98014.

Appellate Division of the Supreme Court of the State of New York, Third Department.

November 10, 2005.

Appeal from an order of the Supreme Court (Aulisi, J.), entered December 16, 2004 in Warren County, which granted defendants' motion for partial summary judgment dismissing the complaint.

Peters, J.

Plaintiffs own a commercial warehouse in the City of Glens Falls, Warren County. They entered into a five-year lease with defendants, commencing April 1, 1997, which included clauses requiring defendants to maintain and clean the premises and engage in a preventive maintenance program for the "heating, plumbing, electrical and alarm systems." In January 2002 plaintiffs were timely notified that defendants intended to vacate the premises at the conclusion of the lease term on March 31, 2002. At the time of such notification, plaintiffs were out of state and did not plan on returning until May 2002. When plaintiffs did not receive a rent payment for March, plaintiff Claude C. Charlebois's inquiry revealed that payment would not be tendered until a final walk-through of the premises could be completed; it is undisputed that the walk-through did not occur until May when plaintiffs returned to New York.

At the time of the walk-through, plaintiffs noted that, although defendants had vacated the building, the premises suffered from substantial damage which included many of the systems which were covered by the preventive maintenance program. At plaintiffs' request, defendants agreed to fully repair the premises. By September 2002, the repairs were completed, the final rent payment was tendered and defendants returned their set of keys.¹ From the time that the leasehold terminated, plaintiffs maintained all relevant and necessary insurance on the premises, paid its taxes and maintenance costs, and transferred all utilities into their own name. Moreover, by April 29, 2002, plaintiffs listed the property with a realtor for its sale or lease and later listed it on an Internet Web site; never was there a claim that defendants' lack of repairs caused a loss of a potential lease or sale agreement.

In December 2003, plaintiffs commenced this action averring, among other things, that defendants owed plaintiffs rental arrearages for the period between April 2002 and October 2002 due to their status as holdover tenants. Defendants successfully moved for partial summary judgment and this appeal ensued.

Plaintiffs' claim of a holdover tenancy premised upon defendants' retention of a set of keys and their periodic use of the premises to complete repairs is insufficient. Typically, "a tenant who has vacated [the] premises but breached covenants to repair cannot be held liable for holdover rent while the repairs are made and the premises unleased" (Arnot Realty Corp. v New York Tel. Co., 245 AD2d 780, 782 [1997]; see Chemical Bank v Stahl, 255 AD2d 126, 127 [1998]; Orkin's Fashion Stores v Kress & Co., 68 NYS2d 764, 764 [1947]; Canfield v Harris & Co., 222 App Div 326, 326 [1927], affd 248 NY 541 [1928]; Mudge v West End Brewing Co., 145 App Div 28, 31 [1911], affd 207 NY 696 [1913]; see also City of New York v Pennsylvania R.R. Co., 37 NY2d 298, 301 [1975]; Tobin v Union News Co., 13 NY2d 1155, 1157 [1964]; cf. ...