Rechler Equity B–1, LLC v. AKR Corp.

• Decision Date: 01 August 2012
• Citation: Rechler Equity B–1, LLC v. AKR Corp., 98 A.D.3d 496, 949 N.Y.S.2d 457, 2012 N.Y. Slip Op. 5813 (N.Y. App. Div. 2012)
• Parties: RECHLER EQUITY B–1, LLC, appellant, v. AKR CORPORATION, respondent.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 496
949 N.Y.S.2d 457
2012 N.Y. Slip Op. 05813

RECHLER EQUITY B–1, LLC, appellant,
v.
AKR CORPORATION, respondent.

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

Aug. 1, 2012.

Hamburger, Maxson, Yaffe, Knauer & McNally, LLP, Melville, N.Y. (Lane T. Maxson of counsel), for appellant.

Kressel & Rothlein, P.C., Massapequa, N.Y. (Stephen Kressel of counsel), for respondent.

PETER B. SKELOS, J.P., MARK C. DILLON, JOHN M. LEVENTHAL, and SANDRA L. SGROI, JJ.

[98 A.D.3d 496]In an action to recover damages for breach of a lease, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), dated November 3, 2011, as denied those branches of its motion which were for summary judgment on so much of the first cause of action as sought to recover damages for unpaid rent and additional rent, on the issue of liability on the second cause of action, and dismissing the defendant's affirmative defenses and counterclaim, and granted the defendant's cross motion for leave to serve an amended answer adding a second counterclaim.

[949 N.Y.S.2d 458]

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the plaintiff's motion which were for summary judgment on so much of the first cause of action as sought to recover damages for unpaid rent and additional rent, on the issue of liability on the second cause of action, and dismissing the defendant's affirmative defenses and counterclaim are granted, the defendant's cross motion for leave to serve an amended answer asserting a second counterclaim is [98 A.D.3d 497]denied, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing to determine the amount of reasonable attorneys' fees to be awarded, if any, and thereafter for the entry of a judgment in favor of the plaintiff and against the defendant in the principal sum of $50,510.64 for unpaid rent and additional rent, and awarding reasonable attorney's fees, if any.

The plaintiff is the owner of commercial property located in Melville. The defendant was a tenant of this property. The parties entered into a lease, which stated on its cover sheet that it was “made ... February 2004 ... for a term of 7 years and one month.” A rider to the lease, however, provided that “the term of this lease shall expire on May 31, 2011.” On March 7, 2011, the defendant returned its key to the premises to the plaintiff by certified mail. The plaintiff responded with a letter acknowledging receipt of the key, but noting that the lease “expires May 31, 2011,” and explaining to the defendant, inter alia, that “we do not accept early surrender of the lease.” The defendant...