Rep A8 LLC v. Aventura Technologies, Inc., 2009-03105

• Decision Date: 22 December 2009
• Docket Number: 2009-03105
• Citation: 68 A.D.3d 1087,2009 NY Slip Op 9641,893 N.Y.S.2d 83
• Parties: REP A8 LLC, Appellant, v. AVENTURA TECHNOLOGIES, INC., Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 1087

2009 NY Slip Op 9641

893 N.Y.S.2d 83

REP A8 LLC, Appellant, v. AVENTURA TECHNOLOGIES, INC., Respondent, et al., Defendant.

2009-03105

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

Decided December 22, 2009.

In an action to recover damages for breach of two commercial leases, the plaintiff appeals, as limited by its notice of appeal

and brief, from so much of an order of the Supreme Court, Suffolk County (Sgroi, J.), dated October 14, 2008, as denied that branch of its motion which was for summary judgment on the issue of liability with respect to the causes of action against the defendant Aventura Technologies, Inc.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment on the issue of liability with respect to the causes of action against the defendant Aventura Technologies, Inc., is granted.

In this action to recover damages for the breach of two commercial leases, the plaintiff (hereinafter the landlord) alleged in the complaint that the defendant Aventura Technologies, Inc. (hereinafter the tenant), abandoned both premises prior to the expiration of the leases, that it commenced two summary dispossess proceedings for nonpayment of rent and, upon the tenant's failure to appear in those proceedings, the District Court entered judgments of possession in its favor. In its answer here, the tenant failed to offer any response to those allegations and, thus, they are deemed admitted (see CPLR 3018 [a]; Human Dev. Servs. of Port Chester v Zoning Bd. of Appeals of Vil. of Port Chester, 67 NY2d 702, 705 [1986]; Santiago v County of Suffolk, 280 AD2d 594, 594-595 [2001]). Moreover, as a consequence of the tenant's default in appearing in the District Court, the landlord's allegations in the summary dispossess proceedings that the tenant had breached the provisions of both leases requiring payment of rent were deemed admitted (see Lancer Ins. Co. v Whitfield, 61 AD3d 724, 725 [2009]; Lamm v Stevenson, 276 AD2d 531 [2000]). In support of its motion for summary judgment on the issue of the tenant's liability in this action, the landlord relied upon the pleadings and the two judgments of the District Court. With this evidence, the landlord made a prima facie showing of entitlement to judgment as a matter of law on the issue of the tenant's liability for breach of the provisions of both leases requiring payment of rent (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition, the tenant adduced no evidence that it had paid the rents alleged in the petitions filed in connection with the summary dispossess proceedings to be due and owing, nor did it otherwise contest the validity of the judgments in those proceedings. With respect to one of the leases, the tenant's principal averred only that the base rent had been paid for a period of time other than that covered by the summary dispossess proceedings. With respect to the second lease, the tenant's principal averred that he had furnished names of prospective tenants to occupy the space for the balance of the term, and that the landlord had unreasonably withheld consent to an assignment of the lease. The second lease contained an express restriction against assignment without the landlord's written consent but had no clause prohibiting the landlord from unreasonably withholding consent. The landlord, thus, was within its rights under the terms of the lease to withhold its consent to an assignment (see Caridi v Markey, 148 AD2d 653, 654 [1989]). Moreover, "[o]nce the tenant...